Joint Procedure Committee Meeting
Scheduled on Tuesday, October 17, 1972 @ 11:00 AM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
October 17-20, 1972
Tuesday, October 17
The Rules Committee convened at 10:00 a.m. on Tuesday, October 17, with Judge Erickstad, Chairman, presiding.
ATTENDANCE
Members present:
Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser
Hon. William S. Murray
Mr. Paul M. Sand
Mr. John G. Shaft (arrived 1:30)
Hon. Kirk Smith (arrived 1:30)
Hon. Roy A. Ilvedson (arrived 3:45)
Members absent:
Hon. Eugene A. Burdick
Mr. John A. Graham
Hon. James Morris
Hon. Norbert J. Muggli
Hon. Harry J. Pearce
Mr. Roger Persinger
Mr. Robert Vogel
Staff present:
Mr. Charles M. Travis, Criminal Code Reviser
Mr. John E. Jacobson, Assistant Code Reviser
Miss Donna Fischer, Secretary
The Committee heard a Supreme Court tape on "Contempt" [U.S. Supreme Court, 1971-1972 Term, No. 6: May 30, 1972, David W. Louisell, Author/Narrator, Special Issue: Contempt].
The agenda for the meeting was distributed.
MINUTES
Copies of the Minutes of June 26-27, 1972, were considered for adoption. One correction should be noted: Paul Sand should be listed as present on June 27.
Judge Murray MOVED the Minutes of June 26-27 be approved as submitted and amended. Seconded by Mr. Sand. Question was called by Judge Erickstad and the motion CARRIED.
ADMINISTRATIVE REMARKS
Mr. Travis introduced John Jacobson, Assistant Code Reviser. He noted that Mr. Jacobson is from Devils Lake, has recently graduated from the University of North Dakota, and has been employed since August 15.
Mr. Jacobson explained that he is working on a comparative analysis of the North Dakota Proposed Rules as well as the North Dakota Century Code in relation to the ABA Standards for Criminal Justice. A copy of this work, applicable to Rules 19 through 38, was presented for the Committee's consideration.
It was noted that the comparative analysis was assigned by Judge Erickstad for the benefit of the Committee in light of the increased importance given to the ABA Standards, especially with reference to various cases handed down by the U.S. Supreme Court [Arqersinger v. Hamlin, 92 S.Ct. 2006 (1972)] and the North Dakota Supreme Court [State v. Champagne, 198 N.W.2d 218 (1972)].
RULE 16. Discovery and Inspection.
It was noted by Mr. Travis that Rule 16 had been adopted at the June 26, 1972 meeting, but that the Committee deferred consideration of the use of the term "prosecution" or "government". Mr. Travis noted that a memo had been prepare for the Committee's benefit and was included as page 1 of the packet that was distributed.
Note to Rule 16
"Prosecution" or "Government"
Webster's definition of the terms "prosecution" and "government" is similar to that contained in both Black and Funk and Wagnalls. The word "prosecution" refers to the act or process of prosecuting; specifically: the institution and continuance of a criminal suit involving the process of pursuing formal charges
-3-
against an offender to final judgment. It also relates to the party by whom criminal proceedings are instituted or conducted.
"Government" In turn relates to the act or process of governing; specifically: authoritative direction or control. It also relates to the continuous exercise of authority over and the performance of functions for a political unit; to the organization, machinery or agency through which a political unit exercises authority and performs functions and which is usually classified according to the distribution of power within it.
Perhaps the best explanation of the confusion between the two terms is found in Black which, in relation to the term "prosecution", states: "by an easy extension of its meaning 'prosecution' is sometimes used to designate the state as the party proceeding in a criminal action, or the prosecutor or counsel; as when we speak of 'the evidence adduced by the prosecution'." Or as stated in reference to the term "government": "In a colloquial sense, the United States or its representatives, considered as the prosecutor in a criminal action; as in the phrase, 'the government objects to the witness'." (8/16/72)
Discussion
Mr. Sand stated that he felt the term "prosecution" is more descriptive and specific than the term "government".
Judge Murray indicated his preference to the use of the term "prosecution" and MOVED that the word "prosecution" be used in lieu of the term "government" in Rule 16. Motion was seconded by Judge Glaser. There was no further discussion; question was called and the motion CARRIED unanimously.
Mr. Sand MOVED to readopt Rule 16 as amended. Seconded by Judge Glaser. The motion CARRIED unanimously. (See Attachment A)
RULE 19
Judge Murray, Acting Chairman.
Mr. Sand, sponsor, noted that at a previous meeting he had recommended that
the Committee not adopt Rule 19 in the form it was (see Minutes of June 26, 1972, pages 30-32). Mr. Sand explained that prusuant to the direction of the Committee, the Rule was rewritten and is now presented as an entirely new Rule, as follows;
Proposed Rule 19. Transfer Within District.
(a) Initiation of Process by Defendant.
Whenever a defendant, who after preliminary examination or waiver thereof, wishes to plead guilty and the presiding judge of the District Court is not conveniently available, he may request the prosecuting attorney to select another judge from within the judicial district to accept his plea and impose fine or sentence or both as appropriate.
(b) Transfer of Records.
The prosecuting attorney shall transfer or cause to be transferred forthwith, to the district judge who will accept the plea, the complete file of the case against the defendant. Such proceedings will be duly recorded by the clerk and following disposition of the case, the file shall be returned to the clerk of the court where the charge was filed.
Discussion
Judge Erickstad questioned the restriction of Proposed Rule 19 to the District Courts rather than applying this provision to other courts, which it is apparently feasible to do. Mr. Sand explained that the Rule is restrictive because the situations which were anticipatorily provided for do not occur in other courts, such as county courts, where the court is either available or not available and the objective is accomplished by a change of venue or other process. Mr. Sand added that it was his opinion that Rule 19 couldn't be broadened to include other courts, that a degree Rule 20 would more properly apply in other court situations, and that an attempt to broaden Rule 19 to include other courts would disturb the semblance of procedure now established. The Rule as presented incorporates two North Dakota statutes, which will be superseded by the adoption of the Rule.
The Explanatory Note to Rule 19 was read by Mr. Sand, as follows;
-3-
Explanatory Note
Rule 19. Transfer Within District.
Sources: Minutes of the Rules Committee Meeting of September 26-27, 1968, pages 7-9; Barron, Federal Practice and Procedure: Criminal §2071 (1951); Wright, Federal Practice and Procedure: Criminal §311 (1969).
Statutes Affected:
Superseded: 29-09-03, 29-09-04.
Rule 19 is an adaptation of Section 29-09-03 NDCC (Prosecution on information without waiting for term of court.) and is designed to overcome the binding effect of term time when the term judge is unavailable and the defendant wishes to plea guilty to a criminal charge. The Rule contemplates that the District Court is always open [Section 27-05-07 NDCC (Purposes for which district courts always open--When and where issues of fact triable.)] to accept a plea.
Subdivision (a) provides that the initiation of the process is by the defendant but the selection of the alternate District Judge to accept such plea is left to the prosecuting attorney. The procedure is intended to create a balance between the defendant and the prosecution by allowing the defendant to dispose of the case by pleading guilty to the charge and the advantage to the prosecution in preventing "judge-shopping" by the defendant. Since the defendant is not required to maintain his guilty plea after initiating the process, he is protected from having a judge whom he feels is unsympathetic to his case because the effect of a plea of not guilty reverts the action to its original status before the District court of term.
Subdivision (b) is adapted from Section 29-09-04 NDCC (Appearance in court--Chambers--Plea.) and provides that when the action is transferred, the file shall be forwarded to the judge who will receive the plea, the proceedings will be held in the judge's chambers, will be recorded and will have the same force and effect as if the proceedings were held in open court of term. (8/9/72)
Discussion
Mr. Sand explained that the benefit of the Rule is to the defendant who wishes to plead guilty when no judge of district court is available to accept his plea and the defendant is anxious to commence with his rehabilitation and punishment. Mr. Sand noted that the provision in the statute which allows for written confession of guilt was not incorporated into the Rule, and it was his opinion that such provision was inadvisable, inapplicable, and redundant and that such provision has no judicial value and could simply be cancelled by the defendant through later refusal to participate in the proceedings. Mr. Sand explained that the 'term of court' is another reason the Rule is inapplicable to all courts.
Judge Glaser questioned the language of the last line of Rule 19(a), "accept his guilty plea and impose fine or sentence or both as appropriate", insofar as grammatical correctness is concerned. Judge Glaser stated that he would prefer "accept his guilty plea and impose sentence", deleting the extra language.
Mr. Sand MOVED to strike the words "fine or" and "or both as appropriate" in the last line of 19(a). Second by Judge Glaser. Judge Erickstad called for the question; the motion CARRIED unanimously.
Mr. Sand MOVED subdivision (a) as amended be adopted. Second by Judge Glaser. Judge Erickstad called for the question; motion CARRIED unanimously.
Mr. Sand MOVED 19(b) be adopted as proposed. Second by Judge Erickstad. The motion CARRIED unanimously.
Judge Glaser raised the issue of when a 'term of court' is ended in a district court. Paul Sand responded by noting that the term of court is ended when the judge announces in open court that such term is ended. However, many judges, as a practical matter, deliberately do not close the term so that they can reopen without a problem. A problem raised by this procedure is the effect of a new judge, and necessity would require closing of the term.
Judge Glaser noted that under the new Jury Act, jurors can be selected to serve up to a year at a time as a panel. As the jurors are not discharged but rather are
-4-
subject to call, how can a term be closed? Mr. Sand responded by noting that under the present jury provision, the jury list is not contingent upon the term of court, but rather at the close of the term, those jurors on the jury list that was presented for that term are then dismissed.
Statutes Affected
Superseded:
29-09-03 no objection
29-09-04 no objection--Companion Section to 29-09-03 and must be superseded.
Discussion re Explanatory Note text (see above)
Mr. Sand MOVED to insert "the" before the words "term" in line 2 of paragraph 1, in the last line of paragraph 2, and in the last line of Paragraph 3 of he Explanatory Note. Second by Judge Erickstad. Motion CARRIED.
Mr. Sand MOVED that the Explanatory Note as amended be adopted. Second by Erickstad. CARRIED unanimously.
Mr. Sand MOVED that Rule 19 as amended and the Explanatory Note be adopted. Second by Judge Glaser. Motion CARRIED unanimously. (See Attachment B)
RULE 20
Mr. Travis noted that there is no change in the Rule as was previously adopted (see Minutes of 9/26/68 at pages 8-9) and that there is no comparative analysis with the ABA Standards.
Rule 20 was read by Mr. Sand, sponsor, as follows;
Rule 20. Transfer from the County for Plea and Sentence. [adopted 9/26/68]
(a) Indictment, Information, or Complaint Pending.
A defendant arrested or held in a county other than that in which the indictment, information, or complaint is pending against him may state in writing that he wishes to plead guilty, to waive trial in the county in which the indictment, information, or complaint is pending and to consent to disposition of the case in the county in which he was arrested or is held, subject to the approval of the prosecuting attorney for each county. Upon receipt of the defendant's statement and of the written approval of the prosecuting attorneys, the clerk of the court or the court in which the indictment, information, or complaint is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court or court for the county in which the defendant is held and the prosecution shall continue in that county.
(b) Effect of Not Guilty Plea.
If, after the proceeding has been transferred pursuant to subdivision (a) of this rule, the defendant pleads not guilty, the clerk of court or the court shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. The defendant's statement that he wishes to plead guilty shall not be used against him without his consent.
Discussion
Mr. Sand noted that a casual reading of Rules 19 and 20 would indicate that they relate to the same subject matter, but they in fact do not.
Mr. Sand MOVED 20(a) and (b) be readopted as proposed. Second by Judge Glaser.
Judge Erickstad questioned how under present practice offenses in different counties can be consolidated for trial. Mr. Sand replied that it would require consent, citing Section 29-11-10.1 (Charging crime in separate counts and consolidating indictments and informations.). Mr. Travis noted that Section 29-11-10.1 is superseded by Rules 7, 8 (Joinder of Offenses and of Defendants), 13 (Trial Together of Indictments or Informations), and 14 (Relief from Prejudicial Joinder).
Action on the motion for adoption of the Rule was delayed so that the Explanatory Note could first be heard. Mr. Sand read the Explanatory Note, as follows;
-5-
Explanatory Note
Rule 20. Transfer from the County for Plea and Sentence.
Sources: Minutes of the Rules Committee Meeting of September 26-27, 1968, pages 8-9; Barron, Federal Practice and Procedure: Criminal, §2081 (1951); Wright, Federal Practice and Procedure: Criminal, §321-323 (1969); Goodman, Revolutionary Procedure in Criminal Actions, 1948; 8 F.R.D. 338, 340-341.
Statutes Affected:
Superseded: 33-12-13.
Rule 20 is an adaptation of Federal Rule 20. It permits a defendant, arrested or held in a county other than that in which the indictment, information, or complaint is pending against him, to state in writing that he wishes to plead guilty to waive trial in the county in which charges against him are pending and to consent to disposition of the case in the county in which he was arrested or is held, subject to the approval of the prosecuting attorney for each county. The Rule differs from existing practice in that it permits a defendant, charged in one county and held in another, to plead guilty in the county in which he was found. The Rule benefits the defendant in that it permits a speedy disposition of his case, if he desires to plead guilty, without the hardship which may be involved in transferring him back to the county in which he was charged. This may be desirable for a defendant who is arrested at or near his residence for a crime committed elsewhere in the state. The benefit to the state is the savings in transportation expenses. The requirement that the State's attorney of both counties must consent to this action by the defendant provides the necessary safeguards for the state.
Subdivision (a) differs from its Federal counterpart in that it includes the complaint as a charging document, thus eliminating the need for subdivision similar to (b) under the Federal Rule.
Subdivision (b) provides that a defendant is not obligated by his request for a transfer under subdivision (a). If the defendant decides not to plead guilty, he shall be tried thereafter in the county in which the information was originally filed, on such information or on another information filed in term time, as the state's attorney may so elect. However, the written statement may not be used against the defendant without his prior consent.
The Advisory Committee's Notes to the original Federal Rule [18 U.S.C.A., F.R.Crim.P. 20 at page 127] say in part;
This rule introduces a new procedure in the interest of defendants who intend to plead guilty and are arrested in a district other than the one in which the prosecution has been instituted. This Rule would accord to the defendant in such a situation an opportunity to secure a disposition of the case in the district where the arrest takes place, thereby relieving him of whatever hardship may be involved in a removal to the place where the prosecution is pending. In order to prevent possible interference with the administration of justice, however, consent of the United States Attorneys involved is required. (8/10/72)
Attention was brought to the earlier stated motion to readopt Rule 20(a) and (b); the motion CARRIED unanimously.
Mr. Sand MOVED adoption of the Explanatory Note to Rule 20.Judge Erickstad seconded; motion CARRIED unanimously.
Mr. Sand MOVED Rule 20 and its Explanatory Note be adopted in entirety. CARRIED. (See Attachment C)
Acting Chairman Murray noted for the record that despite a late start, the Committee was now ahead of the agenda.
RULE 21.
Mr. Travis noted that there is no change in Rule 21 (Transfer from the County or Municipality for Trial) and that he had reviewed the Rule with Mr. Persinger, the sponsor of this Rule, who was satisfied with the content of the Rule and the Explanatory Note.
Judge Murray read Rule 21, as follows;
-6-
Rule 21. Transfer from the County or Municipality for Trial. [adopted 9/17/70]
(a) For Prejudice in the County.
The court upon motion of the defendant shall transfer the proceeding as to him to another county whether or not such county is specified in the defendant's motion if the court is satisfied that there exists in the county or municipality where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.
(b) Transfer in Other Cases.
For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him to another county.
(c) Proceedings on Transfer.
When a transfer is ordered, the court shall transmit to the clerk of the court to which the action or proceeding is transferred all papers in the action or proceeding, or duplicates thereof, and any bail taken, and the prosecution shall continue in that county. Whenever the place of trial of a criminal action or proceeding is changed as provided in this rule, the prosecuting attorney of the county wherein the action or proceeding was commenced, or any other person appointed to prosecute, shall prosecute the case for the state, and the judge ordering the transfer shall preside at the trial. The action or proceeding, except for the payment and collection of costs, shall be conducted in all respects as if it had been commenced in the court to which it is transferred.
(d) Transfer of Records.
After acquittal or conviction in the action or proceeding, the clerk of the court to which the action or proceeding was transferred shall retransmit all papers in the action or proceeding to the clerk of the court in which the action was commenced.
(e) Transfer by Prosecution.
The prosecution may apply for a transfer of a criminal action as a defendant may apply, and the court being satisfied that it will promote the ends of justice, may order such removal upon the terms and to the extent and in the manner provided in this rule.
Acting Chairman Murray then read the Explanatory Note also, as follows;
Explanatory Note
Rule 21. Transfer from the County or Municipality for Trial.
Sources: Minutes of Rules Committee Meeting of September 26-27, 1968, pages 9-11; Minutes of Rules Committee Meeting of September 17-18, 1970, pages 7-9; Wright, Federal Practice and Procedure: Criminal §341-347 (1969); 8 Moore's Federal Practice ¶21.01 (Cipes, 2d Ed. 1970); U.S.C.A., Title 18, Federal Rules of Criminal Procedure, Rule 21, page 135.
Statutes Affected:
Considered: 29-15-21,33-03-11.
Superseded: 27-05-22, 29-15-01, 29-15-02, 29-15-03, 29-15-04, 29-15-05, 29-15-06, 29-15-07, 29-15-08, 29-15-09, 21-15-10, 29-15-11, 29-15-12, 29-15-20, 33-12-12, 33-12-14, 40-18-20, 40-18-21.
Rule 21 is an adaptation of Rule 21 of the Federal Rules of Criminal Procedure. It provides the defendant with a procedural device for changing the place of trial. This may be accomplished by means of either a motion for a change of place of trial alleging either that prejudice exists against the defendant or that it is a necessity for the convenience of parties and witnesses in the interest of justice.
Subdivision (a) differs from its Federal counterpart in that it provides for change of venue within the confines of the court structure of North Dakota. The Rule is intended for application in cases in which prejudice in the community will make it difficult or impossible to select a fair and impartial jury. It is not designed for cases in which it is claimed that the judge is biased
-7-
since there are statutory remedies enabling a party to disqualify a judge on the ground of personal bias or prejudice. [See NDCC, Section 29-15-13 through 29-15-19 and 29-15-21.] In passing on a motion for transfer on the ground that the defendant cannot obtain a fair and impartial trial in the district, the ultimate question to be decided is whether it is impossible to select a fair and impartial jury. It is suggested that the proper occasion for such a determination is upon the voir dire examination.
Since the court has considerable discretion in passing on motions under 21(a) the burden is upon the defendant to show a reasonable likelihood of prejudice. The common judicial attitude is one which holds that relief should be granted only in exceptional cases. In determining whether to grant relief in cases where it is claimed that pretrial publication has made prejudice inevitable, four important factors must be considered: (1) it is necessary that the publicity be recent, widespread, and highly damaging to the defendants; (2) whether the prosecution was responsible for the objectionable material, or if it eminated from independent sources; (3) whether an inconvenience to the prosecution and the administration of justice will result from a change of venue or continuance; and (4) it must be considered whether a substantially better panel can be sworn at another time or place.
Subdivision (b) grants to the court, on motion of the defendant, the power to transfer any proceeding "for the convenience of parties and witnesses, and in the interest of justice". Subdivision (b) was designed to provide a remedy against the prosecution which initiates a criminal action in an improper forum. It implements the policy that venue should be chosen to minimize the inconvenient to the defense. The Rule recognizes the special importance in criminal prosecutions of seeking a convenient place for trial. The distinction between a motion under subdivision (a) and subdivision (b) is that pursuant to a motion under subdivision (a), the defendant is complaining of prejudice in the district when the case is pending and is seeking to have the case transferred elsewhere, to avoid such prejudice. But on a motion pursuant to subdivision (b), defendant's position is not that the present district is 'bad', but that some other district, usually but not always in his residence, would be more convenient. Of necessity, his motion and his proof must go to establishing the superiority of the district which he has in mind. If a motion is made pursuant to subdivision (b), the court should examine all the circumstances of the case and determine what place of trial will best serve for convenience and in the interest of justice. [For a list of elements the Supreme Court has considered appropriate in exercising discretion under a 21(b) motion, see Wright, Federal Practice and Procedure: Criminal §344 (1969); see also Platt v. Minnesota Mining and Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769; ll.L.Ed. 674 (1963).]
Subdivision (c) is similar to its Federal counterpart [21(c)] to the extent that it places a responsibility upon the clerk of the court transmitting the case to forward to the clerk of the court to which the action or proceeding is transmitted, all papers in the action or proceeding (or duplicates thereof) together with any bail which may have been received.
The provision of subdivision (c) which requires that the prosecuting officers of the case follow the case to its new venue tracks with existing North Dakota law [Section 29-15-12 (Prosecution by officers of county where action was commenced--Jurisdiction of court.)] and has no Federal counterpart. It provides that the judge ordering the change of venue shall preside at the trial [this provision is consistent with existing law (see Section 27-05-22, District Judges to act only within their districts--Exceptions.) and is Constitutionally based (see §116, North Dakota Constitution, 1861)]. This provision is intended to accomplish two objectives: first, it should result in a prompt disposition of the case at trial; and secondly, it will prevent the defendant from securing a different judge merely by obtaining a change of venue without having to file an affidavit of prejudice.
Finally, subdivision (c) provides for the payment of costs of the trial to be submitted to the county in which the action was commenced.
Subdivision (d) has no similar counterpart in the Federal Rule. It requires the clerk of the court to which the action was transferred to retransmit (after acquittal or conviction) all papers in the action or proceeding to the clerk of the court in which the action was commenced.
Subdivision (e) tracks with present law and practice [Section 29-15-11 (Removal by state--Procedure.)] and has no similar Federal counterpart. This subdivision grants to the prosecution the right to move for transfer of the action or proceeding if it will promote the ends of justice. (6/12/72)
-8-
Discussion
Two corrections are noted to the Explanatory Note. In line 8 of paragraph 6, the date "1861" should be changed to read "1889". Above that, in paragraph 4, the last line, the reference should cite "ll L.Ed. 2d 674".
Mr. Sand MOVED to readopt Rule 21 [subdivisions (a), (b), (c), (d), and (e)]. Second by Judge Ericstad.
Judge Glaser commented that the title includes municipal courts but that the body of the Rule does not seem to refer to them. He also stated that he felt the Rule should be more clear on to what court an action would be transferred.
Mr. Sand noted that under present statute, a transfer to the nearest court is governed by Sections 40-18-20 (Affidavit of prejudice.) and 40-18-21 (Change of venue in municipal court.), which are both listed as superseded in the Explanatory Note. Mr. Sand felt that if these statutes are superseded, it becomes a judgment of the court in which the action is filed to determine where the trial will be held in the absence of a specific request by the defendant.
Judge Glaser MOVED to insert the words "or municipality" in subdivision (a) line 2, to read "whether or not such county or municipality is specified...". Second by Judge Erickstad and the motion CARRIED unanimously.
Judge Glaser MOVED to amend subdivision (b) to include the words "or municipality" at the end of the sentence, and to amend subdivision (c) as follows: in line 1, delete the words "the clerk of"; in line 4, include the words "or municipality" after "county"; in line 5, delete the words "of a criminal action or proceeding"; in line 6, include the words "or municipality" after "county"; and in line 8, delete the words "for the state". The motion was seconded by Mr. Sand. Judge Erickstad called for the question; motion CARRIED unanimously.
Judge Glaser MOVED to delete the words "the clerk of" in lines 1 and 3 of subdivision (d), because there are those courts which have no clerks and reference to court would apply to clerks where applicable. Second by Mr. Sand. Judge Erickstad called for the question and the motion to amend CARRIED unanimously.
Judge Glaser MOVED to amend subdivision (e) by eliminating "a criminal" and inserting "the" action "or proceeding". Seconded by Judge Erickstad and CARRIED unanimously.
The meeting RECESSED at 12:05; scheduled to reconvene at 1:30 with Judge Glaser presiding.
The meeting RECONVENED with the following members in attendance: Chairman Erickstad, Judge Glaser, Mr. Sand, Mr. Shaft, Judge Smith. Judge Murray arrived at 2:20. Judge Ilvedson arrived at 3:45. The following staff members were present: Mr. Travis, Mr. Jacobson, Ms. Fischer. Mr. Sand was Acting Chairman.
Rule 21--Explanatory Note
Statutes Affected:
Considered:
29-15-21 Section 29-15-21 (Demand for change of judge.) is necessary as a Considered statute because of the provision in the Rule which requires the judge to follow the case.
In response to a question by Judge Glaser as to whether there is a rule governing change of judge, it was noted that Rule 24.1 (Demand for Change of Trial Judge) has been withdrawn from consideration as a rule 9/16/71.
There was no objection.
33-03-11 (Change of venue in civil actions in justice court.)
No objection.
Superseded
27-05-22 There was discussion on Section 27-05-22 (District judges to act only within their districts--Exceptions.). It was noted that Section 27-05-22 applies to civil and criminal. The North Dakota Constitution prohibits a judge from acting in any district other than his own unless otherwise provided by legislation.
Judge Smith MOVED to list Section 27-05-22 as Considered.Second by Mr. Shaft. Motion CARRIED.
-9-
Superseded:
29-15-01 (Causes for removal of action.)
Mr. Travis pointed out Section 27-02-05.1 (Administration by supreme court.) and again noted Rule 24.1, which deals with demand for change of trial judge. It was suggested that this statute be considered under Rule 24.1.
Judge Smith referred to Section 116 of the North Dakota Constitution, which reads; "Judges of the district courts may hold court in other than their own under such regulations as shall be prescribed by law." No action taken.
29-15-02 no objection (Also superseded by Rule 22.)
29-15-03 (Court must order only one change.)
Judge Erickstad stated that he feels it is best left as is, that is the Rule superseding the statute, which leaves it discretionary with the court.
Mr. Sand suggested the following language be included in the Explanatory Note to Rule 21, at the end of the first paragraph; "By superseding Section 29-15-03, the one-change limitation has been removed in favor of the exercise of sound discretion."
No objection to supersession of the statute.
29-15-04 no objection (Duty of clerk.)
The RECORD notes Judge Murray arrived.
29-15-05 (Disposition of defendant upon removal.)
It was noted that the Rule makes no provision for transfer of defendant. Mr. Sand suggested amending the Rule to incorporate the provision of Section 29-15-05 as subdivision (f), Transfer of Defendant. He suggested the language, "The court shall by an appropriate order provide for transfer of a defendant."
U.S.C.A. was checked as a reference.
Judge Glaser proposed language for subdivision (f) as follows;
(f) Transfer of Defendant.
The transferring court shall order the officer having the defendant in his custody to transfer the defendant to the custody of the proper officer of the county or municipality to which the action or proceeding is transferred. Said transfer shall be made according to the terms of such order.
Judge Glaser MOVED the above-stated language be adopted.Second by Judge Smith. Judge Erickstad called for the question; motion CARRIED unanimously.
Judge Glaser MOVED to reconsider Rule 21 for the addition of subdivision f. Seconded by Judge Smith and CARRIED.
Judge Smith MOVED to readopt Rule 21. Judge Glaser seconded.
Mr. Travis pointed out the preferability of delaying final adoption of the Rule until consideration of statutes and the Explanatory Note. The motion and second were WITHDRAWN.
Section 29-15-05 remains superseded.
29-15-06 no objection
29-15-07 no objection
29-15-08 no objection
29-15-09 no objection
29-15-10 no objection
29-15-11 no objection
29-15-12 no objection
29-15-20 no objection
33-12-12 (Change of venue.)
Judge Erickstad noted that this is not the proper Rule to superseded this statute and recommended that it be considered under Rule 24.1.
It was MOVED by Judge Erickstad, seconded by Judge Smith, to strike reference to Section 33-12-12. CARRIED unanimously.
33-12-14 no objection
40-18-20 (Affidavit of prejudice.)
40-18-21 (Change of venue in municipal court.)
Sections 40-18-20 and 40-18-21 were discussed together.
-10-
Judge Erickstad suggested that Sections 40-18-20 and -21 be considered under Rule 24.1 and that at that point, the Committee might draft a rule to apply to all courts for both change of judge for prejudice and for change of venue.
Judge Glaser suggested that Section 40-18-21 (Change of venue in municipal court.) is already covered by Rule 21.
Judge Erickstad explained that subdivision (a) of Rule 21 speaks of so great a bias or prejudice in a community, which precludes consideration of prejudice on the part of the judge; subdivision (b) deals with the "convenience of parties..., and in the interest of justice,"; and subdivision (c) provides that the judge follow the law.
Paul Sand noted that Section 40-18-21 is properly superseded under Rule 21. no objection
It was MOVED by Judge Erickstad and seconded by Mr. Shaft to remove Section 40-18-20 from Statutes Superseded under Rule 21 and to consider it with Rule 24.1. CARRIED.
Judge Smith suggested adding the word "corresponding" to subdivision (c), to read, "When a transfer is ordered, the court shall transmit to the corresponding court to which the action or proceeding is transferred ..."
Judge Erickstad suggested that the issue raised by Judge Smith had been taken care of by the Committee's action earlier in the meeting, in superseding Section 40-18-21, which allows transfer from a municipal court to a county court in another county. By eliminating this statute, it would be clear that any transfer would be county-to-county, municipality-to-municipality. Discussion followed concerning transfer of jurisdiction between various courts.
Paul Sand noted that the Constitution gives the legislature authority to regulate the conduct of police magistrates, citing the North Dakota Constitution, Section 113: "The legislative assembly shall provide by law for the election of police magistrates in cities, incorporated towns, and villages, who in addition to their jurisdiction of all cases arising under the ordinances of said cities, towns and villages, shall be ex officio justices of the peace of the county in which said cities, towns and villages may be located. ***" The legislature, by statute, says that the police magistrate shall have exclusive jurisdiction in ordinance matters. He added that, by the same token, Sections 40-18-20 and 40-18-21 provide for matters handled before the county justice court or the county court of increased jurisdiction, and that the legislature obviously intended to give jurisdiction in specific instances to the county justice or the judges of the county courts of increased jurisdiction. Thus if those sections are superseded, some difficulty would arise in trying to say that the Rule implies that jurisdiction is granted.
The RECORD notes the arrival of Judge Ilvedson.
John Shaft MOVED that the following language be added after the first paragraph of the Explanatory Note, as paragraph 2; "Rule 21 contemplates that all transfers shall be made from one court to another corresponding court of the same grade and classification."The motion was seconded by Judge Murray. Mr. Shaft explained that he had some problem with the word "classification", which may be interpreted as jurisdiction, and therefore added the words "grade or". There was no further discussion on the motion. The motion CARRIED.
Judge Smith MOVED the addition of language to the paragraph just added, to eliminate the period after "classification" and insert a comma, and to include the language "unless the affected judges of the courts of different classifications agree to such transfer." Judge Erickstad commented that inserting such language would require change in the Rule. Judge Smith WITHDREW his motion.
Acting Chairman Sand called for any further additions or corrections to the Explanatory Note. Judge Erickstad noted that he was satisfied.
Mr. Shaft noted that no explanatory language had been developed for subdivision (f). He MOVED to permit Mr. Travis an opportunity to develop language for subdivision (f), to be inserted in the Explanatory Note. Seconded by Judge Glaser. Judge Erickstad suggested the desirability of establishing set language at the present time while the Committee has the issue fresh in mind. Motion was WITHDRAWN; second was withdrawn.
Judge Glaser MOVED to add the following language to the Explanatory Note:
"Subdivision (f) was added to incorporate the provisions of Section 29-15
05, NDCC." Second by Judge Murray. Judge Erickstad called for the question; motion CARRIED unanimously.
-11-
Judge Glaser MOVED to adopt Rule 21 as amended. Seconded by Judge Erickstad. Motion CARRIED unanimously.
Judge Glaser MOVED the adoption of the Explanatory Note to Rule 21 as amended. Seconded by Judge Murray. CARRIED unanimously. (See Attachment D)
RULE 22.
Mr. Roger Persinger, sponsor. Adopted September 16, 1968-see Minutes at page 11. Rule 22 was read by Acting Chairman Paul Sand.
Rule 22. Time of Motion to Transfer. [adopted 9/26/68]
A motion to transfer under these rules may be made at or before entry of a plea or at such other time as the court or these rules may prescribe.
The Explanatory Note was also read by Mr. Sand, as follows;
Explanatory Note
Rule 22. Time of Motion to Transfer.
Sources: Minutes of Rules Committee Meeting of September 26-27, 1968, page 11; 8 Moore's Federal Practice ¶22.01 (Cipes, 2d Ed. 1970); Wright, Federal Practice and Procedure: Criminal §361 (1969); U.S.C.A., Title 18, F.R.Crim.P., Rule 22, page 163.
Statutes Affected;
Superseded: 29-15-02.
Cross Reference: Rule 12, Pleadings and Motions Before Trial; Defenses and Objections.
Rule 22 is an adaptation of Rule 22 of the Federal Rules. It differs from the Federal rule in that the word "arraignment" has been deleted and the words "entry of a plea" were inserted in lieu thereof.
Under Rule 22, a motion to transfer the case or change the venue, as provided in Rules 20 and 21, may be made "at or before entry of a plea or at such time as the court or these rules may prescribe". In view of the nature of the relief granted by Rule 22, it is not unreasonable to require that the motion be made as soon as possible after the indictment or information is filed. Failure to make a timely motion constitutes a waiver of objection to venue [See Carbo v. United States, 314 F.2d 718, 733 (C.A. 9th, 1963), cert. denied 377 U.S. 953 (1964).]
Rule 22 should be considered in light of Rule 12(c) of these Rules, which provides that a motion raising defenses or objections shall be made at the time of the arraignment or as soon thereafter as possible at a time set by the court. (For further discussion see Explanatory Note to Rule 12.) (6/12/72)
Discussion
Judge Ilvedson questioned the use of the term "prescribe". Mr. Travis noted hat the language is identical to the Federal Rule.
Judge Erickstad MOVED to readopt Rule 22 and to adopt the Explanatory Note. Seconded by Judge Ilvedson.
The vote was deferred pending a consideration of Statutes Affected;
Superseded:
29-15-02 no objection. (Also superseded by Rule 21.)
The motion to readopt CARRIED unanimously. (See Attachment E)
Judge Glaser referred to Rule 12(c), Motion Date, which suggests that the time is set for making pretrial motions at the time of the arraignment or as soon thereafter after as possible, and expressed disapproval. Discussion followed. Judge Glaser discussed arraignment procedure as it pertains to his area noting that upon arraignment the trials are immediately scheduled. He questioned its operation in pretrial proceedings. He further cited the notes under Rule 12, quoting the Advisory Committee.
-12-
Judge Glaser cited an actual case of an attorney who wanted to make some pretrial motions but the state's attorney had neglected to file the information, therefore there was nothing pending. He noted, however, that the attorney's client had been bound over. Upon Judge Smith's questioning, it was noted that practice in Judge Glaser's district is that defendants are not arraigned until the call of the calendar and those individuals are bound over without coming before the district judge unless they want to plead guilty. Judge Smith noted that defendants are arraigned within one week after arrest in his district.
Judge Erickstad suggested that perhaps what was needed was change in local practice. It was further noted, by way of discussion, that the Committee had adopted 12(c) as proposed by the Committee proposing amendments to the Federal Rules, which proposal was subsequently not adopted by the Supreme Court. Judge Glaser had taken it as being impractical. Judge Smith suggested the possibility of entering a provision in 12(c) which would require arraignment as soon after bindover as possible. Mr. Sand noted that the problem is compounded by the notion of some attorneys as to the proper time for filing the information.
There was no motion to reopen Rule 12 and the Committee decided to leave Rule 12 in its present language, with a note of caution that the Supreme Court has not adopted all the proposed amendments to the Federal Rules as submitted by the Committee on Rules of Practice and Procedure. Judge Glaser paraphrased Judge Erickstad's interpretation of Rule 12(c) as not prohibiting the making of a motion prior to arraignment.
The Committee RECESSED for the evening; scheduled to reconvene at 9:00 a.m. the following day.
Wednesday, October 18
The Committee RECONVENED at 9:40 a.m.
ATTENDANCE
Members present:
Judge Erickstad, Chairman
Judge Ilvedson
Mr. Sand
Mr. Shaft
Judge Smith
Members absent:
Judge Burdick
Mr. Graham
Judge Glaser
Judge Morris
Judge Muggli
Judge Murray
Judge Pearce
Mr. Persinger
Mr. Vogel
Staff present:
Mr. Travis
Mr. Jacobson
Miss Fischer
At Judge Erickstad's suggestion, the Committee heard a tape of the Supreme Court, 1971-1972 Term, No. 7: June 19, 1972, David W. Louisell, Author/Narrator, on Lesson 12, Jury. Consideration of Rule 23 (Trial by Jury or by Court) was delayed until Judge Glaser, author, could be present.
RULE 24. Trial Jurors.
Rule 24 adopted September 26, 1968 (see Minutes at pages 11-13); proposed amendment in subdivision (b) to include challenges for cause (see ABA Standards relating to Trial by Jury, §2.4-2.7). Judge Ilvedson read Rule 24, as follows;
Rule 24. Trial Jurors. [adopted 9/26/68]
(a) Examination of Jurors.
The court shall permit the defendant or his attorney and the prosecuting attorney to conduct the examination of prospective jurors.
(b) (((Peremptory))) Challenges.
(1) Peremptory Challenges.
If the offense charged is murder in the first degree, each side is entitled to fifteen (15) peremptory challenges. If the offense charged is a felony other than murder in the first degree, each side is entitled to ten (10) peremptory challenges. If the offense charged is other than a felony, each side is entitled to six (6) peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.
-13-
(2) Challenges for Cause.
If the judge after examination of any juror is of the opinion that grounds for challenge for cause are present, the judge should excuse that juror from the trial of the case. If the judge does not excuse that juror, any party may challenge the juror for cause. A challenge to an individual juror should be made before he is sworn to try the case, but the judge may permit it to be made after he is sworn but before jeopardy has attached.
(c) Alternate Jurors.
The court may direct that not more than four (4) jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impanelled, and two peremptory challenges if three or four alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror.
Mr. Travis pointed out that the one change in the Rule was in the addition of the paragraph on challenges for cause, citing the comparative analysis at page 9. Mr. Travis pointed out that subdivision (b) is consistent with current North Dakota law (Sections 29-17-29, 29-17-32 NDCC) which provides for challenges for cause.
Judge Ilvedson read the Explanatory Note, as follows;
Proposed Explanatory Note
Rule 24. Trial Jurors.
Sources: Minutes of Rules Committee Meeting of September 26-27, 1968, pages 11-13; Barron, Federal Practice and Procedure: Criminal §2130-2136 (1951, 1967 pocket part); Wright, Federal Practice and Procedure: Criminal §381-388 (1969); U.S.C.A., Title 18, Federal Rules of Criminal Procedure: Rule 24, page 174; 8 Moore's Federal Practice ¶24.01 (Cipes, 2d Ed. 1970); ABA Standards for Criminal Justice, Trial by Jury, Approved Draft, 1968, §2.5.
Statutes Affected;
Superseded: 29-17-28, 29-17-29, 29-17-31, 29-17-32, 29-17-47, 29-17-48, 33-12-21, 40-18-17.
Considered: Chapter 27-09.1
29-17-01, 29-17-02, 29-17-03, 29-17-04, 29-17-05, 29-17-06, 29-17-07, 29-17-08, 29-17-09, 29-17-10, 29-17-11, 29-17-12, 29-17-13, 29-17-14, 29-17-15, 29-17-16, 29-17-17, 29-17-18, 29-17-19, 29-17-20, 29-17-21,29-17-22, 29-17-23, 29-17-24, 29-17-25, 29-17-26, 29-17-27, 29-17-30, 29-17-33, 29-17-34, 29-17-35, 29-17-36, 29-17-37, 29-17-38, 29-17-39, 29-17-40, 29-17-41, 29-17-42, 29-17-43, 29-17-44, 29-17-45, 29-17-46.
Rule 24 is an adaptation of Rule 24 of the Federal Rules of Criminal Procedure and is modified to conform to the existing practice within the state. It is the intent of Rule 24 to insure that a defendant's Sixth Amendment guarantee of an "impartial jury" is protected. To implement this right to an impartial jury, subdivision (a) permits an examination of prospective jurors to determine whether any of them are actually biased against the defendant or the prosecution, or whether that juror's status or ideas are
-14-
such that bias may be inferred. Others whom the parties find objectionable may be challenged peremptorily, but the number of such challenges is limited by subdivision (b).
Subdivision (a) was modified to allow the continuance of the present practice of permitting examination of jurors by opposing parties or their attorneys rather than by the court. This differs from the Federal rule, which gives the court the discretion to determine whether it should question the prospective jurors or allow the opposing parties to do so. Subdivision (a) thus replaces Section 29-17-28 (Jurors examined by either party.).
Subdivision (b)(1) follows existing state law and maintains the number of peremptory challenges now permitted under Section 29-17-31 (Challenges to prosecution and defendant.). The provision of subdivision (b) which permits additional peremptory challenges in trials with multiple defendants is an innovation to the present practice.
Under subdivision (b)(1) the peremptory challenge is exercised by a party not in the selection but rather in the rejection of prospective jurors. The peremptory challenge is not aimed at disqualification but is exercised against qualified trial jurors as a matter of favor to the challenger. The right to peremptory challenges is given in aid of the party's interest in securing a fair and impartial jury.
Subsection (b)(2), regarding challenges for cause, is not in the federal rules but has its origin in the North Dakota Century Code, Sections 29-17-33 through 29-17-40, and the ABA Standards for Criminal Justice, Trial by Jury, Approved Draft, 1968, §2.5. This is considered necessary so that there be no question that challenges for cause are a definite part of the examination of jurors. This rule also obligates the judge to dismiss a juror if grounds for cause exist thereby avoiding prejudicing other jurors against the attorneys. Challenge for cause is consistent with current law (NDCC, Sections 29-17-29, 29-17-32).
Subdivision (c) is taken from the Federal rule and replaces Sections 29-1747 (Alternate jurors, selection--Procedure.) and 29-17-48 (Alternate jurors, oath--Duties.). It modifies the Federal rule by continuing the practice of Section 29-17-48, of allowing an alternate juror to participate in the deliberations of the jury and to take the place of a juror who dies or is discharged prior to verdict. This procedure seems more practical in that it avoids a mistrial in instances where a juror became disqualified by illness or otherwise. This change in format from the Federal rule was made due to a reference in Barron and Holtzoff (§2166 of the 1966 Supp.) commenting that the U.S. Supreme Court indicated to the Advisory Committee on Criminal Rules doubts as to the desirability and constitutionality of a procedure such as North Dakota's (referring to present practice). [See Orfield, Trial Jurors in Federal Criminal Cases, 29 F.R.D. 71, 74 (1962).] This was also the view when Rule 47(a) of the North Dakota Rules of Civil Procedure was adopted. (9/12/72)
Discussion
Judge Erickstad MOVED to amend the last paragraph of the Note by striking the following two sentences; "It modifies the Federal rule by continuing the practice of Section 29-17-48, of allowing an alternate juror to participate in the deliberations of the jury and to take the place of a juror who dies or is discharged prior to verdict. This procedure seems more practical in that it avoids a mistrial in instances where a juror became disqualified by illness or otherwise."
"and to modify the sentence that follows, as shown;"
(((This change in format from athe Federal rule was made due to a reference in))) See Barron and Holtzoff (§2136 of the 1966 Supp.) commenting that the U.S. Supreme Court indicated to the Advisory Committee on Criminal Rules doubts as to the desirability and constitutionality of (((a))) the procedure (((such as North Dakota's (referring to present practice).))) provided for in Section 29-17-48."
Copies of alternate language for the last paragraph proposed by Judge Ilvedson were distributed;
"Subdivision (c) is taken from the Federal rule and replaces Sections 29-17-47 (Alternate jurors, selection--Procedure.) and 29-17-48 (Alternate jurors, oath--Duties.). This procedure avoids a mistrial in instances where a juror became disqualified by illness or otherwise. Barron and Holtzoff (§2166 of the 1966 Supp.) comments that the U.S.
-15-
Supreme Court indicated to the Advisory Committee on Criminal Rules doubts as to the desirability and constitutionality of a procedure that would permit an alternate juror to be substituted if a regular juror becomes unable to perform his duties after the case has been submitted to the jury. [See Orfield, Trial Jurors in Federal Criminal Cases, 29 F.R.D. 71, 74 (1962).] This was also the view when Rule 47(a) of the North Dakota Rules of Civil Procedure was adopted."
The Committee RECESSED for coffee; upon RECONVENING, Judge Smith assumed the Chair.
Further discussion on Explanatory Note, Rule 24
Judge Ilvedson MOVED to strike the last two sentences of the proposed paragraph (above), beginning "[See Orfield.." to end. Motion seconded by Mr. Shaft and CARRIED unanimously.
Judge Ilvedson MOVED to adopt the paragraph with further amendment to read "§2136 of the 1967 Supp.". Second by John Shaft. Motion CARRIED unanimously.
Statutes Affected:
Superseded:
29-17-28 no objection
29-17-29 no objection
29-17-31 no objection
29-17-32 no objection
29-17-47 no objection
29-17-48 no objection
33-12-21 no objection
40-18-17 (Challenges for cause to jurors in court of municipal judge.) Discussion: noted page 46 of F.R.D.; reconsidered paragraph; referred to Section 27-09.1-03 (Definitions.).
Mr. Shaft MOVED Section 40-18-17 be changed from Superseded to Considered. It was noted that Section 40-18-17 is Superseded by Rule 5. Mr. Shaft WITHDREW his motion.
The Committee agreed to include the following notation in the Explanatory Note, shown as a footnote to Section 40-18-17; "It was the consensus of the Committee that Section 40-18-17 was superseded with the idea that this would encourage municipal courts to resort to the jury list that is available now."
Statutes Considered:
Chapter 27-09.1 (Uniform Jury Selection and Service Act) no objection.
29-17-01 no objection
29-17-02 no objection
29-17-03 no objection
29-17-04 no objection
29-17-05 no objection
29-17-06 no objection
29-17-07 no objection
29-17-08 no objection
29-17-09, 29-17-10, 29-17-11, 29-17-13 Judge Ilvedson noted that Sections 29-17-09 (Completion of panel--Procedure.) and 29-17-13 (Number failing, others summoned.) are covered by the Uniform Jury Law and should be superseded. He MOVED to supersede Sections 29-17-09, 29-17-10 (Names of additional jurors--Ballots deposited in box.), 29-17-11 (Drawing the jury.), and 29-17-13, because of the Uniform Jury Selection and Service Act. Mr. Sand seconded the motion; CARRIED unanimously.
29-17-12 no objection (establishes unanimous verdict)
29-17-14 no objection
29-17-15 There was extended discussion concerning the term "panel" with respect to challenges for cause. no objection
29-17-16, 29-17-17 Mr. Sand MOVED Sections 29-17-16 (When several defendants are tried together they must join their challenges. ) and 29-17-17("Panel" defined.) be listed as superseded. Second by Judge Erickstad; motion CARRIED unanimously.
-16-
There was considerable discussion surrounding the question of jury panels.
Considered:
29-17-18, 29-17-19 Judge Ilvedson MOVED to supersede Sections 29-17-18 "Challenge to panel" defined.) and 29-17-19 (Causes for challenge to panel.). Judge Erickstad seconded, Mr. Sand called for the question, and the motion CARRIED unanimously.
It was noted that the statutes through 29-17-26 should be superseded in light of the Uniform Jury Selection and Service Act, Chapter 27-09.1.
29-17-20 Judge Ilvedson MOVED to supersede Section 29-17-20 (Challenge to panel before challenge to Individual juror.). Seconded by Mr. Sand. Motion CARRIED.
29-17-21 Judge Ilvedson MOVED to supersede Section 29-17-21 (Sufficiency of facts controverted--Procedure.). Second by Mr. Shaft; CARRIED.
29-17-22 Mr. Shaft MOVED to supersede Section 29-17-22 (Facts stated in challenge denied--Procedure.). Judge Ilvedson seconded and the motion CARRIED.
29-17-23 Judge Ilvedson MOVED to supersede Section 29-17-23 (Trial of question of fact.). Seconded by Sand and CARRIED.
29-17-24 Mr. Shaft MOVED to supersede Section 29-17-24 (Officers may be examined.). Second by Judge Ilvedson; motion CARRIED.
29-17-25 Mr. Sand MOVED Section 29-17-25 (Challenge taken for officer's bias.) superseded. Second by Judge Ilvedson. CARRIED.
29-17-26 Judge Ilvedson MOVED to supersede Section 29-17-26 (Challenge allowed--Jury discharged.). Mr. Sand seconded. Motion CARRIED unanimously.
The Committee RECESSED for lunch at 12:15; RECONVENED at 1:30 p.m. with the following present: Chairman Erickstad, Judge Glaser, Mr. Sand, Mr. Shaft, Judge Smith, Judge Ilvedson, Mr. Travis, Mr. Jacobson and Miss Fischer. Judge Muggli arrived 2:30. With Judge Kirk Smith Chairing, the Committee continued discussion of Rule 24 Explanatory Mote.
Judge Ilvedson MOVED adoption of a substitute draft of the final paragraph. It was presented to the Committee as follows.
"Subdivision (c) is taken from the Federal rule and replaces Sections 29-17-47 (Alternate jurors, selection--Procedure.) and 29-17-48 (Alternate jurors, oath--Duties.). This procedure avoids a mistrial in instances where a juror became disqualified by illness or otherwise. Orfield's Trial Jurors in Federal Criminal Cases points out that the United States Supreme Court had asked the Advisory Committee on Criminal Rules whether the Committee was satisfied as to the constitutionality of substituting an alternate juror after the jury had begun its deliberations (29 F.R.D. 43, 46)."
Seconded by Mr. Sand.
Judge Erickstad MOVED an amendment to the above draft as follows;
In line 3, insert after the word "where" the words "an alternate juror is substituted for".
In line 4, delete the period after "otherwise" and insert the language "prior to submission of the case to the jury."
In the next sentence, delete the "apostrophe's" from "Orfield's", insert a comma after "Orfield", and underline "Trial Jurors in Federal Criminal Cases".
Seconded by Mr. Shaft. Mr. Shaft called for the question; motion CARRIED unanimously.
The Committee continued their review of Statutes Affected by Rule 24.
Mr. Sand noted that Chapter 27-09.1 supersedes (repeals by inference) Sections 29-17-09 through 29-17-26.
Judge Smith MOVED to include as categories under Statutes Affected "Superseded by Rule" and "Superseded by Inference", and to include the following statutes as Superseded by Inference;Sections 29-17-09, 29-17-10, 29-17-11, 29-17-13, 29-17-16, 29-17-17, 29-17-18, 29-17-19, 29-17-20, 29-17-21, 29-17-22, 29-17-23, 29-17-24, 29-17-25, 29-17-26.
Considered:
29-17-27 Mr. Sand MOVED to supersede Section 29-17-27 (Challenge to individual juror--Peremptory or for cause.) because the Rule as amended includes a provision for challenge for cause. Second by Judge Smith. CARRIED.
29-17-28 Section 29-17-28 (Jurors examined by either party.) is also superseded by Rule
-17-
Considered:
29-17-30 no objection
29-17-33 no objection
29-17-34 Mr. Sand referred to Section 27-09.1-08 (Disqualification from jury service.). He MOVED that Section 29-17-34 (General causes of challenge specified.) be listed as Superseded by Inference.CARRIED.
29-17-35 no objection
29-17-36 no objection
29-17-37 Judge Glaser MOVED that Section 29-17-37 (Exemption is not cause.) be listed as repealed by inference. Second by Judge Erickstad. CARRIED.
Section 27-09.1-10 (No exemptions.) was cited, "No qualified prospective juror is exempted from jury service."
29-17-38 no objection
29-17-39 and 29-17-40 There was agreement that Section 29-17-39 (Exception to the challenge.) is repealed by inference from Chapter 27-09.1.
Mr. Shaft MOVED that Sections 29-17-39 and 29-17-40 (All challenges tried by the court.) be listed under "Superseded by Rule".Second by Mr. Sand. CARRIED.
29-17-41, 29-17-42 and 29-17-43 It was MOVED to list Sections 29-17-41 (Juror challenges a witness.), 29-17-42 (Other witnesses may be examined-- Rules of evidence.), and 29-17-43 (Court must allow or disallow challenge.) also as "Superseded by Rule".CARRIED unanimously.
29-17-44 no objection
29-17-45 no objection
29-17-46 no objection
Mr. Sand MOVED to strike the sentence in the text of the Explanatory Note which reads, "Challenge for cause is consistent with current law (NDCC, Section 29-17-29, 29-17-32).". Seconded by Mr. Shaft and the motion CARRIED unanimously.
Consideration of Rule 24:
Judge Erickstad noted Federal Rule 24(a) and Civil Rule 47(a).
Federal Rule 24. Trial Jurors.
(a) Examination.
The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.
North Dakota Civil Rule 47. Jurors.
(a) Examination of Jurors.
The trial court, at its option, may conduct such a general examination of prospective jurors as it deems proper, but any such action on the part of the trial court shall not in any manner limit the right of the parties or their attorneys to conduct such examination. If such examination is not conducted by the court it shall be conducted by the parties or by their counsel.
The RECORD notes the arrival of Judge Muggli.
Mr. Sand MOVED that in subdivision (a), the word "conduct" be deleted and the words "participate in" be substituted. Second by Mr. Shaft. CARRIED, with Judge Muggli opposing.
Paul Sand MOVED to amend the second paraqraph of the Explanatory Note [dealing with subdivision (a) of the Rule] as follows;
In line 3, delete the words "rather than" and insert therein the word "and";
In line 4, Insert the word "alone" to read "it alone should question";
In line 5, insert the word "also" to read "or also allow";
And delete the last sentence, which reads "Subdivision (a) thus replaces Section 29-17-28 (Jurors examined by either party.)."
Judge Erickstad seconded. Motion CARRIED.
Judge Muggli raised an issue concerning the desirability or undesirability of having attorneys conduct a voir dire in which the attorneys go "too far" and the proceeding becomes a preliminary skirmish to the lawsuit--that such procedures can become very time-consuming.
-18-
Judge Muggli MOVED to adopt subsection (b)(1) as proposed. Mr. Sand seconded. CARRIED.
Mr. Sand MOVED to amend (b)(2) to read, "If the judge, after examination of any juror by himself or either side, is of the opinion...". Reason for the suggested amendment is the ambiguity in the language as presented, which would lead the judge to believe that he must examine a juror before determining that there is sufficient grounds for challenge for cause. Judge Erickstad questioned the necessity for having an examination before a judge would be permitted to excuse a juror for cause. Judge Smith explained that the excusal of a juror should occur the moment the judge deems that sufficient cause for challenge to remove has been established. Motion was seconded by Mr. Shaft. Judge Erickstad called for the question; motion CARRIED unanimously.
Mr. Shaft MOVED that the rest of paragraph (b)(2) be approved.Second by Mr. Sand. CARRIED unanimously.
Judge Muggli MOVED adoption of subdivision (b). Seconded by Mr. Sand and CARRIED unanimously.
Judge Muggli MOVED adoption of subdivision (c), noting that this subdivision doesn't provide for the disability of a juror after retiring to deliberate. Mr. Sand seconded. Motion CARRIED.
Judge Ilvedson MOVED the adoption of the entire Rule 24 including the Explanatory Note. Seconded by Mr. Sand. Motion CARRIED. (See Attachment G)
RULE 23. Trial by Jury or by Court.
After a coffee break, Rule 23 was considered as adopted February 20, 1969 (see Minutes at pages 1-3) with one proposed change in subdivision (a) to reflect the position taken by the Committee in Rule 5(b)(3) in distinguishing "petty crimes" for which there is no right to jury attached. Rule 23 was read by Judge Glaser, as follows;
Rule 23. Trial by Jury or by Court. [adopted 2/20/69]
(a) Trial by Jury.
(((Cases required to be tried by jury shall be so tried.)) Trial shall be by jury in all cases in which the punishment for conviction exceeds 30 days imprisonment or a fine of more than $500 or both such fine and imprisonment unless the defendant waives a jury trial in writing or in open court(((,))) with the approval of the court and (((the))) consent of the (((prosecution))) prosecuting attorney.
(b) Jury of Less Than Twelve.
Juries shall be of twelve but at any time before verdict the parties may stipulate in writing or in open court, with the approval of the court, that the jury shall consist of any number less than twelve.
Judge Glaser read the text of the Explanatory Note to Rule 23, as follows;
Explanatory Note
Rule 23. Trial by Jury or by Court.
Sources: Minutes of Rules Committee Meeting of July 26-27, 1968, pages 11-13; Minutes of Rules Committee meeting of February 20-21, 1969, pages 1-3; Wright, Federal Practice and Procedure: Criminal §371-375 (1969); 8 Moore's Federal Practice ¶23.01 (Cipes, 2d Ed. 1970); U.S.C.A., Title 18, F.R.Crim.P., Rule 23, page 164.
Statutes Affected:
Superseded: 27-08-40, 29-16-02, 29-21-35, 33-12-19, 40-18-15.
Considered: 27-08-41.
Rule 23 is adapted from Federal Rule 23 and governs with respect to trial by jury or by court of all criminal actions which arise within the state. Rule 23 differs from the Federal Rule in that it permits the defendant to waive his right to trial by jury or to consent to a jury of less than twelve in open court in addition to waiver in writing. This position advances the notion that
-19-
a waiver in open court is preferable to written waiver. This Rule differs from the Federal Rule also in that there is no right to trial by jury in cases in which the punishment for conviction exceeds 30 days imprisonment or fine of more than $500 or both such fine and imprisonment. This provision is based on numerous Supreme Court decisions and is consistent with current Federal law (18 U.S.C.A., Section 1, "any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or fine of $500 or both is a petty offense"). The U.S. Supreme Court first spoke on the issue in 1888 in Cowan v. Wilson, 127 U.S. 540, 557, 32 L.Ed. 223, 228, 8 S.Ct. 1301 (1888), in which it said, "In that class or grade of offenses, which according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, a jury trial is not required." It is significant to note that the Cowan decision was issued one year prior to the adoption of the North Dakota Constitution, which provides in Section 7 that "the right of trial by jury shall be secure to all, and remain inviolate; . . ."
In 1937 the Supreme Court reiterated in District of Columbia v. Clawans, 300 U.S. 617, 624, 81 L.Ed. 843, 846, 57 S.Ct. 660, that: "It is settled by the decisions of this court ... that the right of trial by jury ... does not extend to every criminal proceeding. At the time of the adoption of the constitution there were numerous offenses commonly described as 'petty', which were tried summarily without a jury ..." In 1964 in United States v. Barnett, 376 U.S. 751, 12 L.Ed. 2d 65, Mr. Justice Goldberg, joined by the Chief Justice and Mr. Justice Douglas took the position in the dissenting opinion that "At the time of the constitution all types of 'petty' offenses, punishable by trivial penalties, were generally triable without a jury." The Supreme Court in 1966 reaffirmed their position even more strongly in Cheff v. Schnackenberg, 384 U.S. 373, 16 L.Ed. 2d 629, 86 S.Ct. 1523, in holding that "the right of trial by jury in criminal cases, secured by Article 3, Section 2, Clause 3, and by the Sixth Amendment of the Federal Constitution, does not extend to prosecutions for petty offenses." Finally, in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 2d 491 (1968), the Court, in defining petty offense, said, "the boundaries of the petty offense category have always been ill-defined, if not ambulatory, the task to define these boundaries for the purpose of the constitutional right to trial by jury falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempted from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance; in either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions." The Court went on to say that the criteria for determining the right to trial by jury is, "the length of the sentence authorized and not the length of the penalty actually imposed." Dicta in the case provided that "if the sentence is six months or less as a maximum no jury trial is required if the offense otherwise qualifies as a petty offense."*
Subdivision (a), which provides for the waiver of jury trial by the defendant, embodies existing practice, the constitutionality of which has been upheld. [Patton v. United States, 50 S.Ct. 253, 281 U.S. 276, 74 L.Ed. 854 (1930)] But subdivision (a) does not give the defendant an absolute right to waive trial by jury. Before such a waiver may be granted, the defendant must have the approval of the court and the consent of the prosecution. [Dixon v. United States, 292 F.2d 768, (C.A. 1961)] This position reflects the view that "Trial by jury is the normal and with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses." Singer v. United States, 85 S.Ct. 783, 791, 380 U.S. 24, 37-38, 13 L.Ed. 2d 630 (1965).
Subdivision (b) permits either a stipulation in writing before trial that the case be tried by a jury composed of less than twelve or a stipulation during the trial consenting that the case be submitted to less than twelve jurors. The second alternative is useful in case it becomes necessary during the trial to excuse a juror owing to illness or some other cause and no alternative juror is available.
It should be emphasized that for a defendant to be permitted to waive trial by jury or to consent to a trial by less than twelve, it must be shown to be the result of the "express and intelligent consent of the defendant," and it must represent his voluntary act. United States v. Sams, 219 F.Supp. 164, (D.C. Pa. 1963).
This Rule makes no provision for subdivision (c), Trial Without a Jury, as was made under the Federal rule. It is the opinion of the Committee that finding
-20-
of facts specially by the court, upon request of either party is not a desirable provision and since the trial is by jury in all cases except as provided under subdivision (a), subdivision (c) therefore is unnecessary.
*See also, State v. Heath, 177 N.W. 2d 751, dealing with criminal contempt. Held: Criminal contempt is a crime in every essential respect; it is a violation of the law; punishable by fine, imprisonment or both. Court went on to say at page 754, where legislature has fixed the maximum penalty for the offense of criminal contempt at 30 days and $250 fine, such criminal contempt is petty criminal contempt and defendants are not entitled to trial by jury as a matter of right. (8/16/72)
Following the reading of Rule 23 and the Explanatory Note, there was discussion concerning the case State v. Heath, 177 N.W. 2d 751, which deals with criminal contempt. It was noted that this was the Minot school case.
Judge Erickstad noted that the Federal Rule has a subdivision (c) which provides for trial without a jury, and it was noted that the Rule as presently adopted contains no such provision.
Judge Smith read from the Minutes of the February 20, 1969 meeting regarding subdivision (c) as follows: July 26, 1968--voted to omit; reconsidered; motion to adopt failed of passage; no explanation. Judge Smith noted that a problem might arise if there is no provision for trial without a jury. An argument may be presented that there must be a trial through a jury. Judge Smith proposed that subdivision (c) provide that in a trial without a jury, the trial judge shall make general findings of fact.
Judge Erickstad noted that the language of the Explanatory Note to Rule 23(c) of the Federal Rules, as noted in Title 18, U.S.C.A., says, "This rule changes existing law in so far as it requires the court in a case tried without a jury to make special findings of fact if requested." It was noted further that the 1966 amendment "adds to the rule a provision added to Civil Rule 52(a) in 1946."
It was noted that Rule 52(a) of the North Dakota Rules of Civil Procedure has a requirement that "the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment", and so on.
The RECORD notes Judge Ilvedson no longer present.
Judge Eirckstad MOVED to include the following language as subdivision (c) of Rule 52
(c) Trial Without a Jury.
In a case tried without a jury the court shall make a general finding of guilty or not guilty.
Judge Muggli seconded. It was noted that the language of the Rule did not contain the words 'guilty' or 'innocent' because it has been determined that a trial court cannot find a person innocent. Motion CARRIED unanimously.
The language of the Explanatory Note to Rule 23 was questioned with respect to the various cases cited. [It is noted that the language from the Duncan case was taken from the paraphrased headnote.] Judge Erickstad suggested that it would be sufficient to cite the cases, rather than including the language, and thereby avoid the complication of trying to incorporate language to sufficiently reflect the Rule.
With respect to discussion of Duncan v. Louisiana, 391 U.S. 145, Judge Smith read that dicta in the case cited Cheff v. Schnackenberg, 384 U.S. 373, which held that the right to trial by jury in a criminal case, secured by Article 3, Section 2, Clause 3 of the Sixth Amendment of the Federal Constitution, does not extend to prosecutions for petty offenses. The court went on to say that crimes for offenses which carry a penalty of up to six months do not require a jury trial if they otherwise qualify as a petty offense.
Judge Erickstad then suggested delaying further development of the Explanatory Note until language for the Rule is decided upon. Judge Glaser noted that subdivision (c) was adopted as a new provision but that subdivisions (a) and (b) were not as yet readopted.
Paul Sand questioned the language in subdivision (a) which establishes a thirty-day imprisonment as a criteria for a jury trial. Judge Erickstad noted that this is a policy decision and is more conservative than the Federal view, which is six months.
-21-
Acting Chairman Smith read from the Minutes of January 27, 1972, at page 21, noting discussion of 5(b) with respect to the thirty-day, $500 criteria for jury trials, that it was he who proposed that the Committee "take the bull by the horns" by taking a firm stand on the issue so that the Legislature could look at the Committee's work as the basis for a decision on their part. The Minutes note that Judge Erickstad questioned the benefit that a provision of this nature would have, considering that Judge Pearce would be going to the Legislature with a bill to resolve the problems of jury trials in municipal courts and that "He stated that there might be some advantage to having the provision in the rules when going to the legislature, and indicated that this should be considered by the Committee."
Judge Muggli MOVED to adopt Rule 23(a). Seconded by Mr. Shaft. Judge Glaser questioned the language contained therein, "or both such fine and imprisonment". He noted that the phrase "or both such fine and imprisonment" leaves some question as to which criteria would be used as a gauge for determining the right to jury trial and proposed deleting those words.
Judge Muggli AMENDED his motion to adopt subdivision (a) deleting the lanquage "or both such fine and imprisonment".Chairman Smith suggested using the term "maximum", referring to punishment. Mr. Shaft suggested using the term "may exceed". This change in language was acceptable to Judge Muggli as movant and to the second. The language reads, "Trial shall be by Jury in all cases in which the punishment for conviction may exceed 30 days imprisonment or fine of more than $500 unless the defendant waives a jury trial in writing or in open court with the approval of the court and the consent of the prosecuting attorney."
Judge Smith explained that with respect to the language of the Rule regarding the fine and imprisonment, it made no difference whether the defendant was subject to a maximum of thirty days imprisonment and $500 fine because if he got either of the punishments, then both would be included therein.
Question was called for by Judge Erickstad. Vote showed three in favor and two opposed; therefore the motion CARRIES.
Mr. Sand explained his view against, with Judge Glaser concurring, that as a matter of policy he was in favor of the thirty-day provision; however he questioned whether as a matter of Constitutional practice, such provision could be included in the form of a Rule.
Judge Smith noted that Judiciary 'A' is engaged in "decriminalizing" many traffic type offenses by taking away the right to trial and providing instead an administrative action in those cases. He added that it was his opinion that the legislature is "in the mood" to impinge upon jury trials in the same way that the U.S. Congress is encouraged by the U.S. Supreme Court.
Judge Muggli MOVED the adoption of Rule 23(b). Seconded by Judge Glaser. No discussion; Judge Erickstad called for the question and the motion CARRIED, wit Mr. Sand opposed.
Discussion on Explanatory Note to Rule 23
The Committee picked up from the previous discussion of the Explanatory Note to Rule 23, noting that much of the first two paragraphs should be deleted.
Judge Smith proposed the following changes, beginning on line 9: "This provision is based (((on))) upon numerous Supreme Court decisions and is not inconsistent with the policy of current Federal law (18 U.S.C.A., Section 1," any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or fine of $500 or both is a petty offense"). See:" [The provision should end with the citing of the five cases listed in the body of the two paragraphs, cited chronologically, and the rest of the language of the two paragraphs would be deleted.]
Judge Erickstad suggested that subdivision (a) be formulated in an alternative or be restored to the previous language without the provision for limiting trial by jury. He added that he was in favor of this position but that it might be problematic in having the Legislature adopt such provision. It was noted by Judge Smith that it was the Committee's intention in providing such language to alert the Legislature to the position the Committee wished to take, trying to promote the Legislature's action. Judge Erickstad suggested returning to the original language and providing a recommendation to the Legislature for a change in the right to jury policy. Judge Muggli noted that the Committee had already agreed
-22-
to the language of 23(a) and since the function of the Committee is to submit to the Supreme Court recommendations for Rules and the Supreme Court will decide on promulgation, the Legislative function would only be an added benefit.
Judge Muggli noted the benefit of the action the Committee adopted in providing specifics in the Rule rather than requiring the practitioner to review or revert to various aspects of the law.
Judge Smith read the Explanatory Note as amended. Judge Erickstad MOVED its adoption. Judge Muggli seconded. No further discussion and the motion CARRIED unanimously.
The Committee RECESSED until 9:00 a.m. Thursday.
THURSDAY, October 19
The meeting began at 9:20, with Judge Smith as Acting Chairman.
Members present: Chairman Erickstad, Judge Glaser, Judge Muggli, Mr. Sand, Mr. Shaft Acting Chairman Smith.
Staff present: Mr. Travis, Mr. Jacobson, Miss Fischer.
Copies of a proposed draft of paragraph 1 of the Explanatory Note to Rule 23 were presented, as follows;
¶ll of
text of Explanatory Note, Rule 23 (10/19/72)
Rule 23 is adapted from Federal Rule 23 and governs with respect to trial by jury or by court of all criminal actions which arise within the state. Rule 23 differs from the Federal Rule in that it permits the defendant to waive his right to trial by jury or to consent to a jury of less than twelve in open court in addition to waiver in writing. This position advances the notion that a waiver in open court is preferable to a written waiver. This Rule differs from the Federal Rule also in that there is no right to trial by jury in cases in which the punishment for conviction may exceed 30 days imprisonment or a fine of more than $500. This provision is based upon numerous Supreme Court decisions and is not inconsistent with the current policy of Federal law (18 U.S.C.A., Section 1, "any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or fine or $500 or both is a petty offense").
See: Cowan v. Wilson, 127 U.S. 540, 557, 32 L.Ed. 223, 228, 8 S.Ct. 1301 (1888); District of Columbia v. Clawans, 300 U.S. 617, 624, 81 L.Ed. 843, 846, 57 S.Ct. 660 (1937)
United States v. Barnett, 376 U.S. 751, 12 L.Ed. 2d 65 (1964)
Cheff v. Schnackenberg, 384 U.S. 373, 16 L.Ed. 2d 629, 86 S.Ct. 1523 (1966)
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 2d 491 (1968)
See also, State v. Heath, 177 N.W. 2d 751, dealing with criminal contempt, in which the court held that "Criminal contempt is a crime in every essential respect; it is a violation of the law; punishable by fine, imprisonment or both.
Court went on to say at page 754, where legislature has fixed the maximum penalty for the offense of criminal contempt at 30 days and $250 fine, such criminal contempt is petty criminal contempt and defendants are not entitled to trial by jury as a matter of right.
Judge Erickstad noted his objection to some of the language--specifically, the two sentences which read "This position advances the notion that a waiver in open court is preferable to a written waiver. This Rule differs from the Federal Rule also in that there is no right to trial by jury in cases in which the punishment for conviction. . ." With regard to the waiver provision, Judge Erickstad noted that he couldn't determine whether the waiver was required not only in open court but in writing as well, and without reading the Rule, this language would be unclear.
Judge Glaser MOVED to amend the second sentence of the paragraph to read, "Rule 23 differs from the Federal Rule in that the Federal Rule permits only a written waiver." A further change requested was to, "There is no right to trial by jury under Federal law in cases Involving a petty offense. See . . .", listing cases and citing 18 U.S.C.A., Section 1 provides . . .
Judge Muggli suggested eliminating the reference to the State v. Heath case. Judge Glaser suggested that it is necessary to make the point, that the court calls an offense of that type as applied to the statute a petty offense.
Judge Smith then read the proposed language as amended.
-23-
Rule 23 is adapted from Federal Rule 23 and governs with respect to trial by jury or by court of all criminal actions which arise within the state. Rule 23 differs from the Federal Rule in that the Federal Rule permits only a written waiver. There is no right to trial by jury under Federal law in cases involving a petty offense. 18 U.S.C.A., Section 1 provides, "any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or fine of $500 or both is a petty offense". See Cowan v. Wilson, 127 U.S. 540, 557, 32 L.Ed. 223, 228, 8 S.Ct. 1301 (1888); District of Columbia v. Clawans, 300 U.S. 617, 624, 81 L.Ed. 843, 846, 57 S.Ct. 660 (1937); United States v. Barnett, 376 U.S. 751, 12 L.Ed. 2d 65 (1964); Cheff v. Schnackenberq, 384 U.S. 373, 16 L.Ed. 2d 629, 86 S.Ct. 1523 (1966); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 2d 491 (1968). See also, State v. Heath, 177 N.W. 2d 751 (N.D. 1970), dealing with criminal contempt. Criminal contempt is a crime in every essential respect; it is a violation of the law; punishable by fine, imprisonment or both. The Court went on to say at page 754, "Where the Legislature, *** has fixed the maximum penalty for the offense of criminal contempt at thirty days in jail and a $250 fine, we find such criminal contempt to be petty criminal contempt. Therefore the defendants were not entitled to a jury trial as a matter of right."
Judge Glaser MOVED the adoption. Judge Muggli seconded. Judge Erickstad called for the question; motion CARRIED, with Mr. Sand opposed.
Judge Muggli MOVED the adoption of the Explanatory Note dealing with subdivisions (a) and (b), which would be paragraphs 2 and 3. Seconded by Judge Glaser. The question was called. The motion CARRIED with one member opposed.
It was noted that the explanatory note to subdivision (c) has yet to be drafted. Acting Chairman Smith asked for language to explain subdivision (c). Judge Glaser noted that it would help to show how subdivision (c) differs from the Federal Rule.
Judge Muggli MOVED the following language as an explanatory provision for subdivision (c) as follows; "Subdivision (c) differs from the Federal Rule in that it requires only a finding of guilty or not guilty, whereas the Federal Rule provides, 'In a case tried without a jury the court shall make a general finding and shall in addition upon request find the facts specially.***'." Motion was seconded by Judge Glaser and CARRIED unanimously.
Special Subcommittee
Judge Erickstad raised the issue concerning the committee established at a previous meeting, made up of Judges Pearce and Smith, chosen to draft a bill dealing with the jury provision for presentation to the legislature. Judge Smith noted that the great distance he has to travel precludes him from participating to the extent that he would like and requested that he be replaced on the committee.
Judge Erickstad MOVED that Judge Glaser be installed as a member and as Chairman of the legislative committee of the Rules Committee to draft and prepare legislation for introduction to the next session covering jury trials in all proceedings, that any statute would not be inconsistent with proposed Rules 23 and 25. Motion was seconded; question was called; motion CARRIED.
Statutes Affected by Rule 23
Superseded:
27-08-40 Judge Muggli MOVED Section 27-08-40 (Defendants in criminal actions entitled to jury trial--When to be Informed thereof--Waiver.) be superseded. John Shaft seconded. Motion CARRIED.
29-16-02 no objection
29-21-35 Mr. Shaft MOVED that Section 29-21-35 (Death or illness of juror--Procedure.) be removed from the superseded list under Rule 23 and be listed with statutes superseded under Rule 24. Judge Glaser seconded and the motion CARRIED unanimously.
33-12-19 no objection
40-18-15 no objection
Considered:
27-08-41 It was MOVED by Mr. Shaft that Section 27-08-41 (Defendant in criminal action waiving jury trial may be tried by court.) be listed as superseded. Motion seconded by Judge Glaser and CARRIED.
Judge Glaser MOVED the adoption of Rule 23 in total. Judge Muggli seconded. No discussion. The motion CARRIED. (See Attachment F)
-24-
Dates of Next Meetings
The Committee considered the dates for the next meetings. They are as follows; to begin 1:00 p.m. Mon., Dec. 11--Fri., Dec. 15, 1972 and 1:00 p.m. Tues, Feb. 20--Fri., Feb. 23, 1973
Judge Erickstad requested that a letter be sent immediately to all members of the Committee and to the Supreme Court Justices informing them of the scheduled meeting dates.
RULE 24.1 Demand for Change of Trial Judge.
Rule 24.1 was presented in the following form;
Rule 24.1 Demand for Change of Trial Judge.
Withdrawn from consideration as a rule. [adopted 9/16/71]
Source: Minutes of Rules Committee Meeting of September 16, 1971
Cross Reference: Rule 21 (Transfer from the County or Municipality for Trial).
See also Section 29-15-21 NDCC (Demand for change of judge.).
It was noted that this Rule was withdrawn from consideration as a rule on September 16, 1971. It was noted that John Graham is sponsor for Rule 24.1 but that Mr. Graham would not be available at the meeting.
Judge Muggli MOVED to delete the language "Withdrawn from consideration as a rule." and the sources and in place thereof, insert the following;
See Sections 29-15-21 district judges
27-08-38 county court of increased jurisdiction
33-12-12 county justice
40-18-20 municipal judges
Motion seconded by Mr. Sand. CARRIED unanimously.
No consideration was given to the Supreme Court since it is without the scope of these Rules. Furthermore, practice with the Supreme Court is that the judge disqualifies himself if any prejudice exists.
Section 27-07-02 (Jurisdiction of county courts.) was mentioned but will not be listed under the rule.
Section 27-18-04.1 (County Justice--Authority--Jurisdiction--Records.) also applies to county justices and should be included in the Rule. Section 27-08-38 (Change of judge for trial of criminal action in county court having increased jurisdiction.) should be listed, followed by the words "county judge, increased jurisdiction".The addition and amendment were included in the motion and CARRIED unanimously. The text of the Rule now reads as follows;
"See Section 29-15-21 district Judge
Section 27-08-38 county judge, increased jurisdiction
Sections 27-18-04.1, 33-12-12 (county judge or) county justice
Section 40-18-20 municipal judge"
Mr. Sand MOVED to amend Rule 24.1 to include addition of Section 27-02-05.1, to be listed as "See also 27-02-05.1 court administration". Seconded by Judge Muggli. CARRIED. (Set Attachment H)
RULE 25. Judge; Disability.
Rule 25 was adopted September 26, 1968 (see Minutes at pages 13-14). Rule 25 was read as follows by sponsor John Shaft.
Rule 25. Judge; Disability.
(a) During Trial.
If by reason of termination of office, death, sickness or other disability, the district judge before whom a jury trial has commenced is unable to proceed with the trial, a successor in office or any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and (((finish))) complete the trial. In any court, other than the district court, the Supreme Court shall assign a judge to that court for purposes of the trial as provided by the law.
-25-
(b) After Verdict or Finding of Guilt.
If by reason of termination of office, absence, death, sickness or other disability, the district judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, a successor in office or any other judge regularly sitting in or assigned to the court may perform those duties; but if such (((other))) judge is satisfied that he cannot perform those duties because he did not preside at the trial, or for any other reason, he may in his discretion grant a new trial. In any court other than the district court, the Supreme Court shall assign a judge to that court to perform those duties as provided by the law.
He also read the Explanatory Note as follows.
Proposed Explanatory Note
Rule 25. Judge; Disabilty.
Sources: Minutes of Rules Committee meeting of September 26-27, 1968, pages 13-14; Wright, Federal Practice and Procedure: Criminal §391-393 (1969); 8 Moore's Federal Practice ¶25.01 (Cipes, 2d Ed. 1970); U.S.C.A., Title 18, Federal Rules of Criminal Procedure: Rule 25, p. 200.
Statutes Affected:
Superseded: 27-07-23.
Considered: 27-02-05.1.
Rule 25 is an adaptation of Rule 25 of the Federal Rules of Criminal Procedure. It differs substantially from the Federal Rule in that it is designed to be applicable to the entire court system of North Dakota and to cover those situations under which a judge may become incapacitated and unable to perform his duties. This Rule provides for the substitution of a judge either during a jury trial or after verdict or finding of guilt. The contingencies upon which a judge may be substituted include termination of office, death, sickness, or other disability. The classification "other disability" usually refers to retirement or other disqualification of the original judge.
Subdivision (a) of the Federal Rule [upon which subdivision (a) of the North Dakota Rules is based] was adopted in 1966 to combat the increasing problem of judicial disability during jury trials as a result of the number of prolonged "criminal trials". In order for a judge to be substituted during a trial, the following conditions must be satisfied: (1) a declaration that the trial judge is unable to proceed by reason of the occurrence of one of the specified contingencies; (2) the assignment of the case to another judge who regularly sits in the court or is assigned there; and (3) the judge's certification that he has familiarized himself with the record of the trial. Subdivision (a) of this Rule also provides that in courts other than the district courts of North Dakota, the Supreme Court will assign a judge to try the case should one of the contingencies provided for in the subdivision arise. This provision is consistent with Section 27-02-05.1 of the North Dakota Century Code.
Subdivision (b) is applicable in cases where the judge is unable to perform the duties to be performed by the court "after a verdict or finding of guilt". This subdivision applies only to judicial disability after trial and not to the inability of the judge to perform after conviction on a plea of guilty. Though subdivision (b) theoretically provides for a new trial at the discretion of the successor judge, "if he is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason...", in reality judges have been hesitant to order a new trial. Subdivision (b) also makes applicable the provisions of this Rule to courts other than the district courts in accordance with the provisions of Section 27-02-05.1 of the North Dakota Century Code.
Subdivision (b) is similar to Rule 63 of the North Dakota Rules of Civil Procedure and should be read in conjunction with discussion of that Rule. (8/15/72)
Discussion
Judge Smith questioned the language of Rule 25(a), referring to the distinction made between the district judges and the other various court judges. Mr. Travis noted that the Rule didn't specify lower courts, merely referred to the district courts, and the language was intended to apply the disability of the judge rule to all the courts. Judge Smith suggested that if the Supreme Court has the power listed
-26-
in Section 27-02-15, it could be stated simply that in any court other than the district court, the Supreme Court shall assign a judge to that court for purposes of trial as it deems necessary. He proposed that this be left open to the judgment of the Supreme Court.
Judge Smith suggested eliminating the reference to "district" in line 2, as applied to the judge, because he felt that there was no reason to have a special situation. He said that the district judge problem is taken care of by the language "or [by] any other judge regularly sitting in or assigned to the court," which provides that other district judges of the district would take over without resort to the Supreme Court. Judge Muggli noted that the purpose of the Rule is to make provision for disability of a judge during a long, complicated, and protracted trial, which would prove very costly.
John Shaft suggested the deletion of all proposed language changes in subdivision (a) except the word "complete". He then MOVED the adoption of subdivision (a) to read as follows:
(a) During Jury Trial.
If by reason of termination of office, death, sickness or other disability, the judge before whom a jury trial has commenced is unable to proceed with the trial, a successor in office or any other judge regularly sitting in or assigned to the court by the Supreme Court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and complete the trial.
Motion seconded by Paul Sand. Question was called; the motion CARRIED.
The Committee then RECESSED for lunch.
The Committee RECONVENED with the same persons present (see page 22) and Judge Smith, Acting Chairman.
Copies of Rule 25 and the Explanatory Note as redrafted were distributed. Mr. Shaft read subdivision (b) and the Explanatory Note text as follows.
(b) After Verdict or Finding of Guilt.
If by reason of termination of office, absence, death, sickness or other disability, the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, a successor in office or any other judge regularly sitting in or assigned to the court by the Supreme Court may perform those duties; but if such judge is satisfied that he cannot perform those duties because he did not preside at the trial, or for any other reason, he may in his discretion grant a new trial.
Explanatory Note
Rule 25 is an adaptation of Rule 25 of the Federal Rules of Criminal Procedure but differs to the extent that it is designed to be applicable to the court system of North Dakota as provided by the scope of these Rules (Rule 1). This Rule covers those situations in which a judge may become disabled during a jury trial to the extent that he is precluded from completing the trial, and after trial to the extent he is unable to perform those duties necessary following a verdict or finding of guilt.
Subdivision (a) describes the instances under which a judge may be disabled from completing a jury trial. In order for a judge to be substituted during the trial, the following conditions must be satisfied: (1) a declaration that the trial judge is unable to proceed by reason of the occurrence of one of the specified contingencies; (2) the assignment of the case to another judge who regularly sits in the court or is assigned there; and (3) the judge's certification that he has familiarized himself with the record of the trial. This subdivision presumes that in courts, other than the District Courts, the Supreme Court will assign a judge to try the case should one of the contingencies provided in the subdivision arise. This provision is consistent with section 27-02-05.1 NDCC. It should be noted that subdivision (a) applies only to jury trials.
Subdivision (b) is applicable to both jury and non-jury trials wherein the judge is unable to perform his duties "after a verdict or finding of guilt." This subdivision applies only to judicial disability after trial and not to the inability of the judge to perform after conviction on a plea of guilty. Subdivision (b) also presumes that in courts, other than the District Courts, the Supreme Court will assign a judge to perform the duties after verdict or finding of guilt in accordance with the provisions of Section 27-02-05.1 NDCC.
Mr. Shaft MOVED adoption of 25(b). Seconded by Judge Muggli. Question was called and the motion CARRIED unanimously.
-27-
Judge Smith called for discussion concerning the Explanatory Note.
Judge Glaser MOVED that the second sentence of paragraph 2 of the Explanatory Note be stricken. The language reads, "in order for a judge to be substituted during the trial, . . .". Judge Glaser noted that he questioned the word "declaration" with respect to who it was that would be responsible for making such declaration. Judge Smith noted that there were only a few situations which would not require such declaration, such as termination of office and death, but that sickness or other disability would require such declaration. He added that in a case of sickness, the judge himself could make such declaration, but that there should be a point at which another judge may take over if the trial is unable to proceed by reason of stroke or mental collapse, if the trial is long and protracted and much time has already elapsed. Mr. Travis noted that the Supreme Court could be charged with responsibility for making the declaration based on all the facts upon recommendation of the court administrator and request of either of the attorneys. The motion was seconded by Judge Muggli. There was no further discussion; question was called and the motion CARRIED unanimously.
Judge Muggli MOVED to strike the next sentence in that Paragraph. which reads, "This subdivision presumes that in courts, . . .". Judge Glaser seconded the motion. Discussion was called. Mr. Travis suggested the deletion of the companion language, in the next paragraph referring to subdivision (b). Judge Smith suggested that there was different reference point and deletion of the language in subdivision (b) would not necessarily follow. Question was called on the motion and the motion CARRIED.
Mr. Shaft MOVED to add the following sentence to the end of the Explanatory Note: "This provision is also consistent with Section 27-02-05.1, NDCC." Seconded by Judge Muggli. Motion CARRIED.
Judge Smith expressed dissatisfaction with the use of the term "non-jury" when referring to cases tried without a jury. He noted that there were cases where the jury was waived for some reason and suggested that a better term would be "jury trial" or "court trial".
Mr. Shaft MOVED to change "non-jury" to "court", referring to trials, in line 1 of the third paragraph. Seconded by Mr. Sand.
Mr. Travis noted that the term "non-jury" was used in other rules. Judge Smith noted that "non-jury" is a correct term, but that it doesn't express the entire concept and is limited to an extent. Question was called; the motion CARRIED.
Mr. Shaft, reading from Wright's on Federal Practice and Procedure, pointed out that there was an Eighth Circuit case which held subdivision (a) as being unconstitutional. Reference was made to 354 F.2d 496. Judge Erickstad cited Moore's Federal Practice and the case United States v. Williams, 163 F.2d 695 (1947), which was not held to be unconstitutional.
Mr. Shaft MOVED the adoption of the text of the Explanatory Note of Rule 25 as amended. Motion was seconded by Judge Glaser and CARRIED).
Statutes Affected
Superseded:
27-07-23 Mr. Sand suggested that Section 27-07-23 remain superseded, but it was pointed out that the statute applies to other than criminal court proceedings. It was suggested that a new category be established which would reflect the statutes necessarily superseded but applicable only to criminal proceedings.
Mr. Shaft MOVED that Section 27-07-23 be listed as "Superseded for criminal process only". Mr. Sand seconded. There was no further discussion. The motion CARRIED.
Considered:
27-02-05.1 no objection (the overall Supreme Court superintending statute)
27-18-04.1 Mr. Shaft MOVED that Section 27-18-04.1 (County justice--Authority--Jurisdiction-Records.) be listed as Considered.Judge Muggli seconded and the motion CARRIED.
-28-
27-08-34 Judge Smith suggested that Section 27-08-34 (Change of venue of preliminary examinations held before judge of county court having increased jurisdiction.) should be superseded as inconsistent with other provisions.
Mr. Shaft MOVED the adoption of Rule 25 together with the Explanatory Note, with Statutes Affected to include Section 27-08-34 as Superseded. Judge Muggli seconded. No further discussion. Question was called. The motion CARRIED. (See Attachment 1)
RULE 5.1
Judge Smith MOVED that Section 27-08-34 also be listed as Superseded under Rule 5.1. Seconded by Mr. Sand. Motion CARRIED unanimously.
Judge Smith relinquished the Chair to John Shaft for consideration of Rule 26.
RULE 26. Evidence.
Rule 26 was adopted December 12, 1968 (see Minutes at pages 13-14). Judge Murray is the sponsor. There are no proposed changes.
Rule 26 was read by Judge Glaser, as follows;
Rule 26. Evidence. [adopted 12/12/68]
In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by law or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when a statute or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of this state in the light of reason and experience.
The Explanatory Note was read by Judge Muggli, as follows;
Explanatory Note
Rule 26. Evidence.
Sources: Minutes of Rules Committee Meeting of December 11-12, 1968, pages 13-14; Barron, Federal Practice and Procedure: Criminal, §2151-2185 (1951); Wright, Federal Practice and Procedure: Criminal §401-419 (1969); 8 Moore's Federal Practice ¶26.01 (Cipes, 2d Ed. 1970); U.S.C.A., Title 18, Federal Rules of Criminal Procedure: Rule 26, page 202.
Statutes Affected:
Considered: 29-21-11, 29-21-12, 29-21-12.1, 29-21-14, 29-21-38.
Also, Chapter 31-04.
Rule 26 is an adaptation of Federal Rule 26, modified only to the extent necessary to conform to the court system of North Dakota.
Rule 26 contemplates the development of a uniform body of rules of evidence to be applicable in trials of criminal cases within the state courts. Its Federal counterpart is based on Funk v. United States (54 S.Ct. 212, 290 U.S. 371, 78 L.Ed. 369) and Wolfe v. United States(54 S.Ct. 279, 291 U.S. 7, 78 L.Ed. 617) which indicate that the Federal courts in criminal cases are not bound by the state laws of evidence but are guided by common law principles as interpreted by the Federal courts "in the light of reason and experience". It should be emphasized that Rule 26 expressly continues existing state statutes governing the admissibility of evidence and the competency and privileges of witnesses. Though short and clear, and yet very broad and general, Rule 26 is an attempt to develop a uniform body of evidence law in North Dakota by directing that evidence questions be decided by the principles of the common law "as they may be interpreted by the courts of this state in the light of reason and experience." (6/19/72)
Judge Glaser noted that the North Dakota Bar Association Procedures Committee is working on a code of evidence.
Judge Smith MOVED the adoption of Rule 26. Seconded by Paul Sand. Question was called; the vote was taken; motion CARRIED.
-29-
Statutes Affected:
Considered:
29-21-11 no objection
29-21-12 no objection
29-21-12.1 no objection (Judge Erickstad noted that it was supported by Miranda.)
29-21-14 no objection
29-21-38 no objection
Chapter 31-04 Judge Smith MOVED to list entire Title 31 as Considered. Mr. Travis noted that some provisions of Title 31 have already be superseded by other rules. Judge Smith AMENDED his motion to include as Considered the following Chapters: 31-04, 31-08, 31-09, 31-10. and 31-11. Motion was seconded by Mr. Sand and CARRIED.
MOTION to adopt entire Rule 26 and the Explanatory Note was made by Judge Smith. Judge Glaser seconded and the motion CARRIED unanimously. (See Attachment J)
The Committee RECESSED for coffee.
RULE 26.1 Foreign Law
Upon RECONVENING, the Committee took up consideration of Rule 26.1, Foreign Law, adopted November 19, 1971 (see Minutes at pages 13-15). Roger Persinger is the sponsor; there are no changes proposed.
Judge Erickstad was called upon to read Rule 26.1.
Rule 26.1 Foriegn Law. [adopted 11/19/71]
A party who intends to raise an issue concerning the law of any jurisdiction foreign to this state, shall give notice thereof, citing the foreign law, to the court and opposing counsel at least ten days prior to the hearing or trial, unless otherwise permitted by the court. If opposing counsel does not reply within five days after receiving the notice, the court may determine the foreign law to be as cited in the notice. In determining the foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 26. The court's determination shall be treated as a ruling on a question of law.
Mr. Sand read the Explanatory Note as follows;
Explanatory Note
Rule 26.1 Foreign Law.
Sources: Minutes of Rules Committee Meeting of May 6-7, 1971, pages 13-15; Minutes of Rules Committee Meeting of November 18-20, 1971, pages 10-12 and 18-19; Wright, Federal Practice and Procedure: Criminal §431-432 (1969); 8 Moore's Federal Practice, ¶26.1.01 (Cipes, 2d Ed. 1970); Proposed Idaho Rules of Criminal Procedure, Proposed Rule 26.1, page 86.
Statutes Affected:
Considered: 31-09-01, 31-09-02, 31-09-04, 31-09-10, 31-10-02, 31-10-03, 3110-04, 31-10-05.
Rule 26.1 differs in scope from Rule 26.1 of the Federal Rules mainly because the Constitution prohibits a state from interpreting the criminal law of a foreign jurisdiction. The Rule is treated as a notice requirement by a party intending to rely on the law of a foreign jurisdiction.
Rule 26.1 is intended to furnish the courts with a uniform and effective procedure for raising or determining an issue concerned with the law of a neighboring state. The rule is designed to give advance notice to opposing parties, prior to trial, of any reliance upon the law of another state, in order to avoid the necessity of an adjournment while the opposing attorney is granted time to check out the foreign law. The rule would thus speed up those criminal cases where the settlement of an issue of foreign law is necessary for the resolution of the case.
Although the ten-day requirement for advance notice of the foreign law has been retained (as in the Idaho rule), this has been couched in terms leaving the provision for notice of foreign law to the discretion of the
-30-
court. To achieve this result the language "unless otherwise permitted by the court" was added. This language change provides the court with the discretion of shortening the period if advisable or lengthening it in those situations where the law of a foreign state is difficult to ascertain. (8/21/72)
Mr. Travis explained that Rule 26.1 is designed primarily as a notice requirement so that any party desiring to raise an issue concerning the law of a foreign jurisdiction would be required to give notice 10 days in advance of trial to preclude unnecessary delays at the trial.
Judge Glaser MOVED the readoption of Rule 26.1. Motion was seconded by Judge Muggli, who indicated his approval of the 10-day notice provision in the Rule. No further discussion; the motion CARRIED.
Judge Muggli MOVED adoption of the Explanatory Note. Seconded by Mr. Sand. Acting Chairman Shaft called for discussion. Judge Smith questioned the first sentence of the Explanatory Note. Mr. Travis pointed out the distinction between Federal Rule 26.1 and the North Dakota Rule--that the Federal Rule interprets the law of a foreign jurisdiction to its own purposes, that is, criminal law; whereas the North Dakota Rule acts merely as a notice requirement in that the states are estopped from interpreting the criminal law of a foreign jurisdiction. Judge Muggli read the Federal provision in Title 18, U.S.C.A.
Judge Erickstad MOVED to amend the Explanatory Note and adopt with the deletion of the first paragraph. Seconded by Judge Smith. No further discussion. The question was called and the motion CARRIED.
Judge Glaser questioned in the language of the Rule, the term "issue"--whether there must be an issue at hand before proper Judicial notice can be taken. Judge Glaser called attention to Section 31-10-04 (Evidence of foreign laws admissible--Notice to adverse party of reliance on foreign laws.). Mr. Sand referred to Rule 44.1 of the North Dakota Rules of Civil Procedure, which is similar to Criminal Rule 26.1 and which reads as follows;
Rule 44.1 Determination of Foreign Law.
"A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 43. The court's determination shall be treated as a ruling on a question of law."
Statutes Affected:
Considered:
31-00-01 no objection
31-09-02 no objection
31-09-04 no objection
31-09-10 Judge Muggli suggested that Section 31-09-10 (Method of proving official documents.) was more applicable to Rule 37, Appeals; however there was no objection to listing it as Considered.
31-10-02 no objection
31-10-03 no objection
31-10-04 Judge Muggli noted a conflict in that Section 31-10-04 (Evidence of foreign laws admissible--Notice to adverse party of reliance on foreign laws.) requires "reasonable notice", while the Rule provides for "ten days". Attention was called to the note under Section 31-10-04 that this section is derived from the Uniform Judicial Notice of Foreign Law Act. There was no objection to listing the Section as Considered.
31-10-05 no objection
Judge Smith MOVED the adoption of the entire Rule 26.1 together with the Explanatory Note as amended. Seconded by Judge Muggli. Question was called and the motion CARRIED. (See Attachment K)
RULE 27. Proof of Official Record.
Rule 27 was adopted December 12, 1968 (see Minutes at page 15). Judge Muggli is the sponsor; there are no proposed changes. The Rule and Explanatory Note were read by Judge Muggli, as follows.
-31-
Rule 27. Proof of Official Record. [adopted 12/12/68]
An official record or an entry therein or the lack of such record or entry may be proved in the same manner as in civil actions.
Explanatory Note
Rule 27. Proof of Official Record.
Sources: Minutes of Rules Committee Meeting of December 11-12, 1968, page 15; Wright, Federal Practice and Procedure: Criminal, §441 (1969); U.S.C.A., Title 18, Federal Rules of Criminal Procedure, Rule 27, page 559; 8 Moore's Federal Practice, ¶27.01 (Cipes, 2d Ed. 1970).
Statutes Affected:
Considered: 31-09-01, 31-09-02, 31-09-03, 31-09-04, 31-09-05, 31-09-06, 3109-07, 31-09-08, 31-09-09, 31-09-10, 31-09-11, 31-09-12.
Cross Reference: North Dakota Rules of Civil Procedure, Rule 44 (Proof of Official Record).
Rule 27 follows the Federal rule and is identical to the Delaware and the Colorado Rules of Criminal Procedure. The rule incorporates by reference Rule 44 of the North Dakota Rules of Civil Procedure (as amended in 1971) in which there is provided a simple and uniform method of proving the authenticity of public records, both domestic and foreign, and entry or lack of entry therein. Accordingly, decisions on proof of official records in civil cases are authoritative in criminal cases. Therefore, the discussion of Rule 44 of the Civil Rules should be considered in conjunction with this rule.
It should be emphasized that this rule is not the exclusive means of proving official records or lack of entry therein. Subdivision (c) of Rule 44 of the N.D. Rules of Civil Procedure (which Rule 27 incorporates by reference) provides that such proof may be made "by any other method authorized by law." Thus the proof of the lack of a record under Rule 27 would be in accordance with the provisions of Rule 44(b) of the North Dakota Rules of Civil Procedure. (6/12/72)
Discussion:
Judge Muggli MOVED adoption of the Rule. Seconded by Mr. Sand. Discussion was called. Judge Glaser noted that with respect to reference to civil actions, that the Rules as adopted to this point (26.1) differ from their civil counterpart in that a definite time period is stipulated under the criminal rules, that is, ten days, whereas under the Civil Rules the time period is that which is considered to be "reasonable". Judge Muggli counter-noted that a "reasonable time" is difficult to assess, especially in its interpretation to criminal procedure.
Acting Chairman Shaft noted that the reference to the Civil Rules in the Explanatory Note may be an undesirable procedure and that perhaps it may be preferable to insert the text of the Civil Rule. However, it was noted that N.D. Civil Rule 44 is rather lengthy and such practice would be impractical. There was no further discussion. The question was called and the motion to adopt Rule 27 CARRIED.
Judge Muggli MOVED adoption of the Explanatory Note. Action deferred pending the Committee's consideration of Statutes Affected.
Statutes Affected:
Considered:
31-09-01 thru -12 There were no objections and the entire Chapter is considered. Judge Glaser MOVED to list under Statutes Considered, Chapter 31-09(-0l thru -12). Seconded by Judge Muggli. Motion CARRIED.
Mr. Sand MOVED to include Rule 44.1 of the Civil Rules as a cross reference to both Rule 27 and Rule 26.1. Seconded by Judge Smith. No discussion. The question was called and the motion CARRIED.
-32-
Judge Muggli MOVED to adopt Rule 44 of the North Dakota Rules of Civil Procedure as a cross reference to Rule 27. Seconded by Judge Erickstad. Question was called and the motion CARRIED
Judge Muggli MOVED the adoption of the entire Rule and the Explanatory Note. Judge Erickstad AMENDED the motion to include deletion of the last sentence of paragraph 1 of the Explanatory Note. (as surplusage). Seconded by Judge Glaser. Question was called. The motion CARRIED. (See Attachment L)
RULE 28. Expert Witnesses and Interpreters.
The Committee next began consideration of Rule 28, as adopted February 20, 1969 (see Minutes at pages 4-5). The one change recommended is substitution of the word "prosecution" for "state", for consistency with the Rules. Paul Sand, sponsor, read the Rule and the Explanatory Note.
Rule 28. Expert Witnesses and Interpreters. [adopted 2/20/69]
(a) Expert Witnesses.
The court may order the defendant or the (((state))) prosecution or both to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any, and may thereafter be called to testify by the court or by any party. He shall be subject to cross-examination by each party. The court may determine the reasonable compensation of such a witness and direct its payment out of such funds as may be provided by law. The parties also may call expert witnesses of their own selection.
(b)Interpreters.
The court may appoint an interpreter of its own selection and may fix the reasonable compensation of such interpreter. The court may direct that such compensation be paid out of such funds as may be provided by law.
Explanatory Note
Rule 28. Expert witnesses and Interpreters.
Sources: Minutes of Rules Committee Meeting of February 20-21, 1969, pages 4-5; Wright, Federal Practice and Procedure: Criminal §451-456 (1969); U.S.C.A., Title 18, Federal Rules of Criminal Procedure, Rule 28, page 528; 8 Moore's Federal Practice ¶28.01 (Cipes, 2d Ed. 1970).
Statutes Affected:
Considered: 29-20-01, 29-20-02, 29-20-03, 29-20-05, 31-01-11, 31-01-12.
Rule 28 is an adaptation of Rule 28 of the Federal Rules of Criminal Procedure. It differs from the Federal Rule only in subdivision (b), which provides that compensation for interpreters will be paid out of such funds as provided by state law. [See NDCC, Section 31-01-12 (Fees for Interpreters.)]
Subdivision (a) provides that the court may (if it chooses) exercise its power in the appointment of expert witnesses. This provision is intended to permit the appointment of persons having special knowledge in technical matters to aid the court or jury in an accurate determination of the facts. Subdivision (a) permits the court to inform the witness, in writing, of his duties to preclude the unnecessary inconvenience and expense of requiring the witness to appear in court specifically for that purpose.
Subdivision (b) was added to the Federal Rule in 1966. This provision is consistent with existing state law [NDCC, Section 31-01-11 (Interpreter for witness--When required--How subpoenaed--Oath.)] and authorizes the court to appoint and provide for the compensation of interpreters. To achieve this objective under the Rule, general language is used to permit the court to appoint interpreters in all appropriate circumstances. The purpose of subdivision (b) is to assist non-English speaking defendants in understanding the proceedings or in communicating with assigned counsel. [For the procedure established under Rule 28 for the use of experts, see 8 Moore's Federal Practice ¶28.02 at 28-4] (6/12/72)
-33-
Mr. Sand MOVED the adoption of 28(a). Seconded by Judge Smith. There was no discussion; Judge Erickstad called for the question. The motion CARRIED unanimously.
Mr. Sand MOVED the readoption of 28(b). Seconded by Judge Smith. No discussion; the motion CARRIED unanimously.
Statutes Affected:
Considered:
29-20-01 Mr. Sand noted that Section 29-20-01 (Examination of defendant's mental condition to determine whether he shall be tried.) becomes operative only when an indictment or information has been filed. There was no objection.
29-20-02 no objection
29-20-03 no objection
It was suggested that Section 29-20-04 (Written report required--Witness at trial.) be listed as Considered, thereby considering the entire Chapter 29-20. MOTION was made by Judge Glaser to list "Chapter 29-20" Considered. Seconded by Mr. Sand. No further discussion. The question was called and the motion CARRIED.
31-01-11 no objection
31-01-12 There was discussion concerning the different fees for interpreters for witnesses, as provided under Section 31-01-12 (Fees for interpreters.). It was noted that the fee listed in the statute is $5/day, whereas the Rule provides that the fee shall be as deemed to be "reasonable". A problem that was noted with respect to Section 31-01-12 is that fees to be paid for interpreters apply not only to criminal prosecutions but civil as well. Therefore, Judge Smith MOVED that the statute be listed as "superseded for criminal process only". Seconded by Judge Glaser. CARRIED unanimously.
A question was raised concerning the fees for expert witnesses. Section 28-26-06 (Disbursements taxed in Judgment.) provides for the fees of expert witnesses to exceed $100/day plus actual expenses. Judge Smith MOVED that Section 28-26-06 be listed as Considered.Motion was seconded by Judge Muggli and CARRIED unanimously.
Acting Chairman Shaft called attention to the bracketed language in the last line of paragraph 1 of the Explanatory Note, noting that the proper citation order should be "See Section 31-01-12, NDCC (Fees for interpreters)". Mr. Shaft also suggested eliminating in line 1 of paragraph 2 the language in the parenthesis, "(if he chooses)". It was suggested that the correction also be made in line 2 of paragraph 3 to properly cite the NDCC reference. Mr. Sand suggested deleting the bracketed material in all three paragraphs. Judge Muggli MOVED to correct the Explanatory Note accordingly (third paragraph). Seconded by Mr. Sand.
Judge Smith proposed an AMENDMENT to the motion with respect to paragraph 3, so that the second sentence would read, "This provision is consistent with existing state law, Section 31-01-11, NDCC, which authorizes the court..." His amendment to the original motion is to include the appropriate statute. It was acceptable to Judge Muggli, the movant, and to Mr. Sand, the second. CARRIED unanimously.
Question was raised concerning the bracketed reference in the third paragraph to Moore's Federal Practice. Judge Smith suggested moving the reference to the source notes at the top of the Explanatory Note. Judge Muggli included this in his MOTION to adopt Rule 28. Mr. Sand seconded. Judge Erickstad moved the previous question. Vote was taken and the motion CARRIED. (See Attachment M)
Acting Chairman Shaft RECESSED the Committee until 9:00 Friday morning.
Friday, October 20
Rules Committee RECONVENED at 9:30 a.m. with Mr. Shaft sitting as the Acting Chairman. Present were Committee members Erickstad, Muggli, Sand, Shaft and Smith and staff members Travis, Jacobson and Fischer.
RULE 29. Motion for Judgment of Acquittal.
The Committee first took up consideration of Rule 29, adopted September 26-27, 1968 (see Minutes at page 14). There are no recommended changes.
-34-
Mr. Sand, sponsor, read the Rule as follows;
Rule 29. Motion for Judgment of Acquittal. [adopted 12/12/68]
(a) Motion Before Submission to Jury.
The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.
(b) Reservation of Decision on Motion.
If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.
(c)Motion After Discharge of Jury.
If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilt is returned, the court may on such motion set aside the verdict and enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.
The Explanatory Note was read as follows;
Explanatory Note
Rule 29. Motion for Judgment of Acquittal.
Sources: Minutes of Rules Committee Meeting of September 26-27, 1968, page 14; Minutes of Rules Committee Meeting of December 11-12, 1968, pages 15-17; Barron, Federal Practice and Procedure: Criminal, §2221-2225 (1951); Wright, Federal Practice and Procedure: Criminal §461-470 (1969); 8 Moore's Federal Practice ¶29.01 (Cipes, 2d Ed. 1970); U.S.C.A., Title 18, Federal Rules of Criminal Procedure: Rule 29, page 568.
Statutes Affected:
Considered: 12-05-03, 29-21-08, 29-21-09, 29-21-10, 29-21-37.
Rule 29 is an adaptation of Federal Rule 29. It differs from the Federal rule in two aspects: (1) the first sentence of subdivision (a) was deleted, and (2) the word "complaint" was added as a charging document in subdivision (a) to conform with these Rules and existing practice within the state.
Subdivision (a) is intended to preserve the right of the defendant to offer evidence in his own behalf, if his motion for a judgment of acquittal is denied. The purpose of the second sentence of the rule is to remove that doubt (which presently exists in a few federal districts) as to whether the defendant is deemed to have rested his case if he moves for a directed verdict at the close of the prosecution's case.
Subdivision (b) is similar to Rule 50(b) of the North Dakota Rules of Civil Procedure and permits the court to render judgment for the defendant notwithstanding a verdict of guilty.
Subdivision (c) follows the Federal Rule which was revised in 1966 to effect several changes in the post-verdict procedure. Under the Rule. a motion for acquittal may now be made after discharging the jury even though not made before submission to the jury. The time in which the motion may be made has been changed from five to seven days with a provision for extension of time. References to a motion for a new trial as an alternative to the motion for acquittal have been eliminated. (Motions for a new trial are covered in Rule 33.) (6/19/72)
-35-
Mr. Paul Sand MOVED the adoption of Rule 29(a) with one modification--in line 7, the word "government" should be deleted and insert in lieu thereof "prosecution". Motion was seconded by Judge Erickstad. No discussion. Motion CARRIED.
Mr. Sand MOVED subdivision (a) be readopted as amended.Seconded by Judge Erickstad. No discussion. Question was called and the motion CARRIED.
Question was raised concerning subdivision (b) of Rule 29. Reference was made to Section 29-21-37 (Court may advise jury to acquit.) of the North Dakota Century Code. Mr. Shaft noted that the provisions of subdivision (b), as have been discussed, are about the same as a motion notwithstanding the verdict. Mr. Sand, agreeing with that proposition, noted that in substance, the defendant who is dissatisfied with the jury after having requested one can reject the jury's finding and request the judge to rule on the verdict.
Judge Erickstad cited the discussion in 18 U.S.C.A. at Rule 28 relative to the matter under discussion. He said, further, there is helpful case law on the subject. Judge Muggli cited a practical application of subdivision (b) as that of the drug case, in which the defendant would prefer to try the case to the court without a jury but the prosecution is more inclined to request a jury simply because the public, "up-in-arms" with the drug problem, is more inclined to find the defendant guilty. This type of rule would help the defendant who does not favor trial by jury.
Question was whether the motion in Rule 29 is more closely aligned with motion n.o.v. or motion for summary judgment. Mr. Shaft suggested that the motion for summary judgment reverts to a factual issue. Judge Erickstad suggested that the issue at hand relates more to subdivision (c) and that it would be beneficial to adopt subdivision (a). Judge Smith, who raised the issue, said that he was willing to forego any further discussion on the subject in deference to the adoption of subdivision (a).
Judge Erickstad read a provision dealing with reservation of decision, as follows; "When a motion is made for judgment of acquittal at the end of the government's case, trial court is not permitted to reserve his ruling but must rule at that time. However, when such motion is made after all the evidence has been submitted including that of the government and that of the defendant, the trial court may reserve its ruling and submit the case to the jury."
Judge Muggli noted that he didn't object to (b) so much, but rather he found more objection with subdivision (c). Judge Muggli said that he could see subdivision (b) in cases in which the judge was in doubt at the close of the trial but that his question applied more to the issue of whether the judge had a veto over the verdict of the jury [subdivision (c)]. He said that subdivision (b) presumes that the motion was made to the court but that no decision was made until the jury returned its verdict, whereas subdivision (c) gives the court a veto over a guilty verdict. He noted further that there was no similar state statute covering subdivision (c).
Judge Smith suggested that the veto power as provided in this rule would tend to demoralize the jury, especially in light of the instructions which recite to the jury that they alone are the responsible persons for the verdict whereupon the judge still may veto their guilty verdict. Mr. Shaft said that he couldn't see any objection to the procedure in the criminal Rules, which procedure had been used civilly for many years.
Judge Erickstad questioned the 7-day limiting provision. Judge Muggli noted that the 7-day provision had been included because of the built-in delay in criminal trials and the reluctance for protracted delay; there is desirable for such time limit. Acting Chairman Shaft called for a motion after the considerable discussion.
Mr. Sand noted that he does not favor subdivisions (b) or (c) but that he would accept subdivision (a) so that the court would rule before the jury goes out or after the jury is unable to reach a verdict, in which case the court could decide on a verdict. Judge Muggli noted that he was in favor of allowing a provision to remain so that where the jury returned no verdict, the judge may determine that there is insufficient evidence to convict the defendant and thereby acquit. He added that if the jury does arrive at a verdict, the judge should not be permitted a veto.
-36-
Mr. Sand suggested striking the language "either" and "after it returns a verdict of guilty or" in subdivision (b). There followed a discussion of that particular question. Judge Smith said that the procedure provided for in this rule would permit resolution of a hung jury situation where a motion to acquit is not granted. Judge Smith added that as a policy matter, he finds no objection to the motion if made prior to submission to the jury.
Judge Muggli added that it appears to him that under the provisions of this rule, the defendant has two opportunities for motion of acquittal, that is, after the state rests and after all the evidence is in.
With respect to subdivision (c), Acting Chairman Shaft noted that the language fixing the 7-day period within which the motion of acquittal must be made is awkward and subject to misinterpretation. He said that it was clear to him that what was intended by the language was that the court may fix, within the 7-day period, a future time for judgment of acquittal; however upon closer examination it may be interpreted as the motion must be made within the 7-day period.
Judge Smith moved alternative language for subdivision (c) to remedy the objection raised by Mr. Shaft, as follows; "If the jury is discharged without having returned a verdict, the motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or the court within such 7-day period may extend the time for making such motion." In discussion, Judge Erickstad noted a grammatical conflict in that language, where reference is made to a motion in the first part of the sentence, and then reference is made to the court in the latter part of the sentence. He added that it was not parallel and there was no proper relation.
Paul Sand noted that "with respect to the provision under subdivision (a), it is 'on the state side' and that '(a) says that at the close of the prosecution evidence, it may move for acquittal'; (b) says after all the evidence is in may move for acquittal; and '(c) says if the jury is discharged without reaching a verdict, then you may also move for judgment of acquittal'." Judge Muggli was of the opinion that subdivision (a) covered "both sides".
There was a RECESS for coffee, after which Mr. Sand submitted the following proposal for subdivisions (b) and (c);
Rule 29. 10/20/72
(b) Motion and Close of All Evidence.
If a motion for judgment of acquittal is made at the close of all the evidence, the court may either grant the motion or submit the case to the jury.
(c)Motion After Discharge of Jury.
If the jury is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.
Mr. Sand MOVED adoption of the above-submitted language for subdivisions (b) and(c). Seconded by Judge Smith.
Judge Erickstad noted that if the reservation feature is eliminated under subdivision (b), then there is no necessity to continue with the provision for subdivision (b). He suggested listing the heading of subdivision (b), Reservation of Decision on Motion, with the comment "Retained for possible future use". Such provision, he added, would aid the Supreme Court in its consideration of the Rule. Judge Muggli noted that it was his opinion that subdivision (a) covers subdivision (b).
Acting Chairman Shaft wished to have it noted in the RECORD that the Committee is not following the Federal Rule, which has been the general method of procedure in the past, and is not following suggested ABA Standards. He felt it wrong to delete provision for subdivision (b).
Paul Sand MOVED the adoption of subdivision (b) with the heading only and deletion of the body, and subdivision (c) as amended by Judge Smith, to read as follows;
(b) Motion at Close of All Evidence.
Reserved for future use.
(c) Motion After Discharge of Jury.
If the jury is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after
-37-
the jury is discharged or the court within such 7-day period may extend the time for making or renewing such motion. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.
Motion was seconded by Judge Smith. No further discussion and the motion CARRIED.
Mr. Sand noted that he was not extremely impressed with the final product for Rule 29, but that under the circumstances, he thought it was the best at which the Committee could arrive.
Explanatory Note--Rule 29
The Committee next took up consideration of the Explanatory Note to Rule 29. Mr. Sand suggested changing in line 1 the word "adaptation" to "variation", so that the first sentence would read "Rule 29 is a variation of Federal Rule 29." He continued that in line 2, the word "two" should be changed to "several"; delete the colon and place a period there; delete the "one" in parenthesis and capitalize the "t"; in line 3, delete the "two" in parenthesis and capitalize the "t"; and add at the end of the paragraph "Subdivision (b) was eliminated."
At this point, it was suggested that there be some explanation for the elimination of subdivision (b) of the Rule. Judge Muggli suggested it was not necessary to explain. Mr. Shaft felt that it would be difficult to explain. It was noted that the procedure in the elimination of subdivision (b) was departure from Federal law as well as existing North Dakota law.
Judge Smith suggested that possible language for use in explaining the elimination of subdivision (b) would be, to avoid putting the trial court in a position of having veto power over verdict of guilty by a jury in a criminal case. Judge Muggli again suggested not including an explanation because it would necessitate development of arguments to support the Committee's position, It was finally agreed that no explanation would be given other than to say that subdivision (b) was eliminated.
Judge Smith proposed language for subdivision (c) of the Explanatory Note as follows; "Subdivision (c) follows the Federal Rule which was revised in 1966 to effect several changes in the post-trial procedure. Under the Rule, . . . even though not made before submission to the jury. The time in which the motion may be made, however, limits its application to cases where the jury has been discharged without reaching a verdict."
Mr. Sand suggested the following language; "Subdivision (c) varies from the Federal Rule, which was revised in 1966, to effect several changes in the post-trial procedure. Under the Rule, a motion for acquittal may now be made after the jury has been discharged without reaching a verdict even though not made before submission to the jury. The time in which the motion may be made has been changed from five to seven days with a provision for extension of time. The major departure from the Federal Rule is that the North Dakota Rule does not permit this motion to be made after a verdict of guilty."
The Committee RECESSED, during which time the following paragraph was prepared; "Subdivision (c) varies from the Federal Rule, which was revised in 1966, to effect several changes in the post-trial procedure. Under the Rule a motion for acquittal may now be made after the jury has been discharged without reaching a verdict even though not made before submission to the jury. The time in which the motion has been made has been changed from 5 to 7 days with a provision for extension of time. The major departure from the Federal Rule is that the North Dakota Rule does not permit this motion to be made after a verdict of guilty."
After further suggested language changes, it was finally decided that the Explanatory Note for subdivision (c) would read as follows;
"Subdivision (c) varies from the Federal Rule which was revised in 1966 to effect several changes in the post-trial procedure."
Judge Smith suggested changing "aspects" to "respects" in paragraph one of the Explanatory Note.
Statutes Affected
The Committee decided to take up a consideration of the statutes affected by Rule 29 prior to final adoption of the Explanatory Note.
-38-
Considered:
12-05-03 no objection
29-21-08 no objection
29-21-09 no objection
29-21-10 no objection
29-21-37 Mr. Sand MOVED that Section 29-21-37 (Court may advise jury to acquit.) be removed from the list of Considered statutes and be included in the Statutes Superseded by Rule 29.Seconded by Judge Smith. Question was called by Judge Muggli and the motion CARRIED.
Judge Muggli suggested a consideration of Chapters 29-24 (Motion for New Trial) and 29-25 (Motion in Arrest of Judgment).
Mr. Sand suggested instead a cross reference to Rules 33 and 34. He MOVED to add a cross reference to see Rule 33 (New Trial) and Rule 34 (Arrest of Judgment). Seconded by Judge Muggli. Question was called and the motion CARRIED unanimously.
Mr. Sand MOVED that the Explanatory Note as amended be adopted. Seconded by Judge Muggli. Question was called; the motion CARRIED.
Mr. Sand then MOVED the all-comprehensive motion to include and adopt the entire Rule 29 together with its Explanatory Note.Seconded by Judge Muggli. Question was called. The motion CARRIED. (See Attachment N)
The Committee then RECESSED for lunch.
The Committee RECONVENED at 1:00. First item for consideration was proposed rule 29.1, Closing Argument in Jury Cases, a new rule sponsored by Paul Sand, who explained that the Rule is adapted from the Proposed Amendments to the Federal Rules dated January 1970. The Rule follows.
Proposed Rule 29.1 Closing Argument in Jury Cases.
After the closing of evidence the prosecution shall be permitted to open the argument to the jury. The defense shall be permitted to reply. The prosecution shall then be permitted to reply in rebuttal. (((Unless good cause is shown, the prosecution shall present in rebuttal no theory of law or fact which was not presented in one or both of the prior arguments.))) (6/12/72)
Judge Muggli questioned the necessity for adopting Rule 29.1 in light of Section 29-21-01 of the NDCC, which includes in its subsection 5 the same provision. He questioned the necessity for establishing a Rule based on one portion of a statute just because such provision was proposed as a Rule under the Federal Rules. Mr. Sand responded that he felt some obligation to put such provision before the Committee for consideration, since such consideration was given to the Federal Rules and the Committee has been guiding itself by the provisions of the Federal Rules of Criminal Procedure. It was noted that the statute is important because it establishes the order of trial in North Dakota.
Judge Muggli MOVED to indefinitely postpone any consideration of 29.1. Seconded by Paul Sand. There was no further discussion and the motion CARRIED unanimously.
Rule 30. Instructions.
The Committee next took up consideration of Rule 30, Instructions. Rule 30 was adopted September 27, 1968 (see Minutes at pages 14-15). Judge Ilvedson is the sponsor. There are no changes proposed from the Rule as adopted. Judge Smith read Rule 30, as follows;
Rule 30. Instructions [adopted 9/27/68]
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time, copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless the objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the
-39-
objection out of the hearing of the jury and, on request of any party, out of the presence of the jury. The instructions shall be reduced to writing and read to the jury and shall be taken by the jury to the jury room.
*The court shall instruct only as to the law of the case. *The instructions given by the court and those suggested by counsel shall both be recorded and become part of the trial record.
Judge Muggli then read the Explanatory Note, as follows;
Explanatory Note
Rule 30. Instructions.
Sources: Minutes of Rules Committee Meeting of September 26-27, 1968, pages 14-15; Barron, Federal Practice and Procedure: Criminal §2231-2235 (1951); Wright, Federal Practice and Procedure: Criminal §481-502 (1969); 8 Moore's Federal Practice ¶30.01 (Cipes, 2d Ed. 1970); U.S.C.A., Title 18, Federal Rules of Criminal Procedure: Rule 30, page 600.
Statutes Affected:
Considered: 29-22-04, 29-22-05, 29-22-06.
Superseded: 29-21-30, 29-21-31, 29-21-32, 29-21-33.
Rule 30 is adapted from Rule 30 of the Federal Rules of Criminal Procedure. It differs from the Federal Rule in that it requires the instructions to be reduced to writing and read to the jury and permits the jury to take a copy of the instructions with them into the jury room. It specifically limits the instructions given to the law of the particular case. [This incorporates existing North Dakota law. See Section 29-21-30 (Instructing the jury--Procedure.). See also Rule 51 (Instructions to Jury) of the N.D. Rules of Civil Procedure.]
Rule 30 permits any party to file with the court Requests that particular instructions be given. The rule is permissive in form, but there are many instructions which the court must give even though not requested by either party (i.e., it is the duty of the trial judge to charge the jury on all essential questions of law, whether requested or not). The rule provides that Requests shall be filed with the court at the close of the evidence or at such earlier time during the trial as the court shall direct. Under the Rule, the party submitting Requests for instructions must furnish the adverse party copies thereof at the time he makes such requests.
Rule 30 requires the court to inform counsel as to its ruling upon the Requests prior to the arguments to the jury. The purpose of this requirement is that counsel be advised in a fair way what the charge is going to be so that they may intelligently argue the case. Failure of the court to so inform counsel requires reversal if their argument is hampered by lack of this information, but may be treated as harmless error if they are not prejudiced by it. [see Irvin v. United States, 338 F.2d 770 (C.A. 9th 1964)] The court is not required to give the requested instructions in the exact language submitted even if it is a correct statement of the law. For even though the requested instructions may be a correct statement of the law, it is preferable for the court to use its own language in framing those given after closing arguments or supplemental instructions given at the request of the jury during its deliberations, must be given in the presence of the defendant and counsel, and must be given orally by the judge.
Rule 30 provides that no party may assign as error any portion of the charge unless he objects to it before the jury retires to consider its verdict. The purpose of this provision is to give the trial court an opportunity to correct any error or omission in the charge before the jury begins its deliberations. The rule also provides that, on request, the objection may be made out of the presence of the jury as well as out of their hearing [See Hall v. United States, 378 F.2d 349 (C.A. 10th, 1967)]. The general rule thus is that a defendant cannot raise an objection on appeal for the first time if he has failed to object specifically to the charge, or failed to request a charge omitted by the trial court. However this Rule must be read in connection with Rule 52 (Harmless Error and Obvious Error) which allows plain errors or defects affecting substantial rights to be noticed by the appellate court even though they were not brought to the attention of the trial court. (6/12/72)
-40-
Discussion
Judge Smith questioned the interpretation of the language noting that it was his interpretation that under the Rule the judge would be required to give counsel an opportunity to object to the instructions before final argument. Under present procedure the courts may do such. Question was raised with respect to the applicability of Rule 30 to municipal court judges giving instructions. Following further discussion, Judge Smith proposed the following amendments;
The third sentence to read: "The court shall inform counsel of its proposed instructions and its proposed action (((upon))) on the counsel's requests (((prior to their arguments to the jury, but))) The court shall instruct the jury after the arguments are completed."
Also, starting in line 10: "Opportunity (((shall))) may be given to make the objection to the proposed instructions, which shall be madeout of the hearing of the jury and, on request of any party (((out of the presence of the jury))). The instructions shall (((be reduced to writing))) become part of the trial record."
Judge Muggli called the Committee's attention to Rule 51 (Instructions to Jury) of the N.D. Rules of Civil Procedure, and suggested the possibility of adopting Civil Rule 51. He noted the desirability of having the criminal and civil rules pertaining to instructions identical.
Judge Erickstad read the proposed Federal Civil Rule 51 for the Committee's benefit. It was noted that it is very close in language, purpose and scope to the Federal Criminal Rule. Judge Muggli noted that this lent credence to his argument that the North Dakota Criminal Rule on jury instructions should be similar to the North Dakota Civil Rule on jury instructions.
Judge Muggli MOVED to adopt Rule 51 of the North Dakota Rules of Civil Procedure in its entirety as Rule 30 of the N.D. Rules of Criminal Procedure. Judge Muggli emphasized that he was referring to North Dakota Civil Rule 51 as amended, specifically because it made reference to the pattern jury instructions. John Shaft suggested including a subdivision (d) to include a provision for a magistrates courts. Mr. Sand was in agreement. Judge Muggli, however, suggested that staff develop language for subdivision (d) and meanwhile, that the Committee consider his motion. The motion was seconded by Judge Smith. Mr. Sand called for the question and the motion CARRIED unanimously.
Mr. Sand proposed language for subdivision (b) as follows;
"The municipal courts, county justice courts, if presided over by a person learned in the law, may at their option use Rule 30 but any municipal court or county justice court not presided over by a person learned in the law, such presiding officer may in his discretion give instructions as provided under this rule."
Judge Muggli MOVED an amended version of the language to be subdivision (d), as follows;
(d) Courts Not of Record.
This rule shall not apply to county justice courts or municipal courts, provided, however, if such court is presided over by a person learned in the law, such presiding officer may in his discretion give the instructions as provided in this rule.
Judge Smith seconded the motion. There was no further discussion on the motion and the motion CARRIED.
Mr. Sand called the Committee's attention to Section 33-12-20 (Drawing of Jury--Manner of conducting trial.), which says "Except as otherwise prescribed by this chapter, the jury shall be drawn and the trial shall be conducted in the manner prescribed in chapter 33-07." He also cited Section 33-07-17 (Justice not to instruct jury nor to express opinion on facts.), which says "In the trial of a civil action, the justice must not instruct the jury upon the law of the case nor express an opinion as to any matters of fact in controversy therein." And finally, Section 40-18-11, municipal court provisions.
Judge Muggli suggested the following language, to be used as the Explanatory Note to Rule 30;
"This rule is identical with Rule 51 of the North Dakota Rules of Civil Procedure as amended effective August 1, 1971 except for subdivision (d). Subdivision (d) was added to give optional effect of this rule to county justice and municipal courts presided over by persons learned in the law. This subdivision excludes the operation of this rule as to other justice and municipal courts."
The motion was seconded by Mr. Sand. There was no discussion and the motion CARRIED unanimously.
-41-
Judge Muggli MOVED that the Source note list the Minutes of the current meeting and Rule 51 of the North Dakota Rules of Civil Procedure.
Judge Smith MOVED to list the Source reference in the following manner: "NDRCivP, Rule 51, as amended August 1, 1971" (and the Minutes). Seconded by Judge Erickstad. The motion CARRIED.
It was noted that the Source notes of all the Rules shall continue the practice of including the Minutes of the meeting at which the Rule is finally adopted.
Judge Erickstad suggested including in the Source notes to Rule 30 all the notes as provided in the Explanatory Note as presented (6/12/72) plus the language that Judge Muggli had suggested. This was included in the MOTION. Question was called; the motion CARRIED.
Statutes Affected
Superseded:
29-21-30 no objection
29-21-31 no objection
29-21-32 Under Section 29-21-32 (Instructions taken down by reporter--Exceptions.), it was suggested that a note be added to say that "By superseding Section 29-21-32 it was not intended to deprive the reporter of the court of fees to which they were heretofor entitled."
Judge Smith suggested the inclusion of a subdivision (e) in the Rule, to be used in explanation of supersession of Section 29-21-32. Judge Erickstad suggested the following language: "We superseded Section 29-21-32 except as it relates to the court reporter's fees." Seconded by Paul Sand. No discussion. The motion CARRIED.
29-21-33 no objection
33-07-17, 32-12-20 § 40-18-11 Judge Smith MOVED that Section 33-07-17 (Justice not to instruct jury nor to express opinion on facts.) be superseded and Sections 33-12-20 (Drawing of jury--Manner of conducting trial.) and 40-18-11 be Considered. It was suggested that Section 33-07-17 be superseded "as it may apply to criminal procedure". Seconded by Judge Glaser and CARRIED unanimously.
Considered:
29-22-04 no objection
29-22-05 no objection
29-22-06 no objection
Judge Muggli MOVED to adopt Rule 30 and the Explanatory Note.Seconded by Judge Smith. CARRIED. (See Attachment 0)
The Committee took a break for coffee, and upon reconvening, considered Rule 31, Verdict. Rule 31 was adopted December 12, 1968 (see Minutes at pages 18-19). Also, Minutes of the Rules Committee Meeting of December 10-11, 1970, pages 13-15. Judge Smith is the sponsor; there are no suggested changes in the Rule.
The Rule was read by Judge Smith as follows;
Rule 31. Verdict.
(a) Return. [adopted 12/12/68]
The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.
(b) Several Defendants.
If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.
(c) Conviction of Less Offense.
The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
-42-
(d) Poll of Jury.
When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
(e) Special Verdicts. [adopted 12/10/70]
(1) Whenever the defendant interposes the defense of insanity and evidence thereof is given at the trial, the jury, if it finds him not guilty on that ground, shall declare that fact in their verdict.
(2) Whenever the defendant interposes the defense that he has been formerly convicted or acquitted of the same offense or an offense necessarily included therein, or once in jeopardy, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in their verdict.
(3) Whenever the defendant is charged with treason or conspiracy to commit treason and more than one overt act is charged, the jury, before returning a verdict of guilty, must return a special verdict with respect to each overt act charged.
(4) Whenever the defendant interposes any other defense which cannot be reflected in a general verdict, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in their verdict.
He then read the Explanatory Note as follows;
Explanatory Note
Rule 31. Verdict.
Sources: Minutes of Rules Committee Meeting of December 11-12, 1968, pages 18-19; Minutes of Rules Committee Meeting of February 20-21, 1969, pages 3-4; Minutes of Rules Committee Meeting of December 10-11, 1970, pages 13-15; Barron, Federal Practice and Procedure: Criminal §2241-2244 (1951); Wright, Federal Practice and Procedure: Criminal §511-517 (1969); 8 Moore's Federal Practice ¶31.01 (Cipes, 2d Ed. 1969); U.S.C.A., Title 18, Federal Rules of Criminal Procedure: Rule 31, page 778.
Statutes Affected
Considered: 12-06-03, 29-22-01, 29-22-02, 29-22-03, 29-22-04, 29-22-05, 29-22-06, 29-22-07, 29-22-08, 29-22-11, 29-22-16, 29-22-24, 29-22-27, 29-22-30, 29-22-31, 29-22-35, 29-22-36, 29-22-37.
Superseded: 29-22-09, 29-22-10, 29-22-12, 29-22-13, 29-22-14, 29-22-15, 29-22-17, 29-22-18, 29-22-19, 29-22-20, 29-22-21, 29-22-22, 29-22-23, 29-22-25, 29-22-26, 29-22-28, 29-22-29, 29-22-32, 29-22-33, 29-22-34.
Rule 31 is an adaptation of Federal Rule 31. However, Rule 31 differs from the Federal Rule in the addition of subdivision (e). This subdivision was added by the Rules Committee to provide for special verdicts, such as a determination of the sanity of the defendant.
Subdivision (a) requires that the verdict be unanimous and be returned to the judge in open court. The right to a unanimous verdict in a criminal action is believed so important that it cannot be waived by the defendant under any circumstances. See Hibdon v. United States, 204 F.2d 834, 37 A.L.R. 2d 1130 (C.A. 6th, 1953).
Under subdivision (b), whenever there is more than one defendant or more than one count, the jury should return a separate verdict with regard to each defendant and in regard to each count. If this procedure is followed and error is found requiring reversal in regard to one defendant or to one count, this would allow a retrial of that issue alone and does not require a retrial as to all issues or of the entire case. Where the jury is unable to arrive at a verdict in regard to one of the defendants or to one of the counts, it may return a verdict on those counts or defendants on which it is agreed. It may then retire again and resume its deliberations about the remaining defendants or the remaining charges. Further, if the jury does not reach agreement on all charges, those matters on which it does not agree may be tried again. United States v. Skidmore, 123 F.2d 604 (C.A. 7th, 1941).
-43-
By subdivision (c), a jury may convict the defendant of a lesser offense necessarily included in the offense charged. Berra v. United States, 76 S.Ct. 685, 351 U.S. 131, 100 L.Ed. 1013 (1956). Subdivision (c) also provides that the jury may find the defendant guilty of an attempt to commit the offense charged or an offense necessarily included therein, if the attempt is an offense. But the lesser included offense doctrine is not applicable if the factual issues to be resolved by the jury are the same for both the greater and the lesser offense. The doctrine also does not apply if some element is required for the lesser offense that is not included in the greater. Kelly v. United States, 370 F.2d 227 (C.A. 1966).
Subdivision (d) provides that when a verdict is returned that it must be returned in open court. Upon the request of any party, the jury will be polled to determine if the verdict is unanimous. The purpose of polling the jury is to ascertain with certainty that each of the jurors approves of the verdict as returned, and that no one has been coerced or induced to a verdict to which he has not fully assented.
Subdivision (e) has no federal counterpart. It was added to this Rule for its value to the court as a tool in determining factual issues. Under the federal system, the use of the special verdict has been held to be error [Gray v. United States, 174 F.2d 919 (C.A. 8th, 1949)]. A determination of the factual issue in the specific instances provided in this subdivision is deemed to be within the province of the jury. Since it is the court who determines the issue of law, the scope of the jury is not exceeded. (6/20/72)
Discussion
Judge Smith MOVED the adoption of subdivision (a). Seconded by Judge Muggli. No discussion. Question was called and the motion CARRIED.
Judge Smith MOVED the readoption of subdivision (b). Seconded by Judge Muggli. No discussion; the motion CARRIED.
Judge Smith MOVED the readoption of subdivision (c). Seconded by Judge Muggli. There was discussion of use of the word "less" in the heading of subdivision (c) It was noted that "less" was used in that way in the Federal Rules. No further discussion. The question was called and the motion CARRIED.
Judge Smith MOVED the adoption of subdivision (d). Seconded by Judge Muggli and CARRIED unanimously.
Judge Smith MOVED the adoption of subdivision (e). Seconded by Judge Erickstad. Motion CARRIED.
Discussion on Explanatory Note
Judge Erickstad questioned whether the second sentence in paragraph 2 has been changed by recent Supreme Court decision. The sentence reads, "The right to a unanimous verdict in a criminal action is believed so important that it cannot be waived by the defendant under any circumstances." He read from Williams v. Farland. He suggested that the annotation say, "We retain the requirement of unanimity notwithstanding that the Committee recognizes that they exist," citing Johnson v. United States and Apodaca v. Oregon. He said that the Committee can still provide for in Rule inconsistent with the law and the Constitution. He then MOVED to substitute the citation at the end of the second paragraph of the Explanatory Note (Hibdon v. United States) with Johnson v. United States and Apodaca v. Oregon, 92 S.Ct. 1628, 11 Cr.L. 3031 (1972). Motion was seconded by Judge Muggli. Question was called; the motion CARRIED.
There was extensive discussion concerning the provision under subdivision (e). Minutes of previous meeting such as December 10-11, 1970, February 20-21, 1969, and December 11-12, 1968 were discussed. It was determined that the source of subdivision (e) was 38 A.L.I. Code Commentaries, Sections 1000-1002, American Law Institute Model Criminal Code.
Judge Smith MOVED to adopt the first paragraph of the Explanatory Note. Judge Muggli seconded. Motion CARRIED.
Judge Muggli MOVED to adopt the Explanatory Note for subdivision (b). Seconded and CARRIED.
-44-
Judge Muggli MOVED to adopt paragraph 4 [pert. to subdivision (c)]. Seconded by Judge Smith. CARRIED.
Judge Smith MOVED adoption of (d) of the Explanatory Note.Seconded by Judge Muggli and CARRIED unanimously.
Judge Smith MOVED adoption of the last paragraph after amending by inserting at the end of line 3, "because of no provision for such verdicts under the Federal Rule." Judge Muggli seconded. CARRIED unanimously.
Mr. Travis raised the possibility of providing for an "Allen Charge".
Statutes Affected
Judge Smith, who sponsors Rule 31, will review the statutes and report on them at another meeting.
Judge Smith MOVED to adopt all of Rule 31 and the Explanatory Note, with the reservation of changes in Statutes Affected. Second by Judge Erickstad. CARRIED unanimously. (See Attachment P)
The Statutes will remain as proposed unless recommended for change by Judge Smith.
Judge Smith MOVED adjournment.
Respectfully submitted,
Charles M. Travis
Criminal Code Reviser
John E. Jacobson
Assistant Code Reviser
Donna M. Fischer
Secretary